- II: Coke’s Speech and Charge At the Norwich Assizes
- (preface, Written By Robert Prickett)
- The Lord Coke, the Preface to His Charge Given At the Assises Houlden In Norwich, the Fourth of August, 1606.
- ¶ Here Followeth the Words of His Charge In Order.
- III: Excerpts From the Small Treatises
- A. Book of Entries
- The Preface of Sr. Edward Coke, Knight Lord Chiefe Justice of England of Pleas Before the King Himselfe to Be Holden Assigned, and One of the Lords of His Majesties Most Honorable Privie Councell.
- B. the Compleat Copyholder
- Sec. XXXIII.
- C. Little Treatise On Baile and Mainprize
- The Conclusion With Advertisment.
- IV: Excerpts From the Institutes
- A. the First Part of the Institutes
- The Preface.
- Section 1 Fee Simple
- Section 2 Fee Simple
- Section 3 Fee Simple
- Section 4 Fee Simple
- Section 5 Fee Simple
- Section 7 Fee Simple
- Section 8 Fee Simple
- Section 9 Fee Simple
- Section 10 Fee Simple
- Section 11 Fee Simple
- Section 12 Fee Simple
- Section 21 Fee Tail, Part 2
- Section 69 Tenant At Will, Part 2
- Section 80 Tenant By the Verge, Part 3
- Section 96 Escuage, Part 2
- Section 108 Knight’s Service, Part 6
- Section 138 Frankalmoin, Part 5
- Section 170 Tenure In Burgage, Part 9
- Section 199 Villenage, Part 18
- Section 342 Conditional Estates, Part 17
- Section 366 Conditional Estates, Part 41
- Section 372 Conditional Estates, Part 47
- Section 412 Descents, Part 27
- Section 464 Releases, Part 20
- Section 481 Releases, Part 37
- Section 723 Warranty, Part 30
- Section 728 Fee Warranty, Part 35
- B. the Second Part of the Institutes
- Deo, Patriae, Tibi.
- Magna Charta,
- C. The Third Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of High Treason.
- Cap. II. of Petit Treason.
- Cap. III. of Misprision of Treason.
- | Cap. IV. Felony By Compassing Or Conspiring to Kill the King, Or Any Lord Or Other, of the Kings Counsell.
- Cap. V. of Heresie.
- | Cap. VI. of Felony By Conjuration, Witchcraft, Sorcery, Or Inchantment.
- | Cap. Lxii. of Indictments.
- D. The Fourth Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of What Persons This Court Consisteth.
- Cap. VII. the Court of Kings Bench, Coram Rege. 1
Of What Persons this Court consisteth.
Of the High and Most Honourable Court of Parliament
| This Court consisteth of the Kings Majesty sitting there as in his Royall politick capacity, and of the three Estates of the Realm: viz. On the Lords Spirituall, Archbishops and Bishops, being in number 24, who sit there by succession in respect of their Counties, or* Baronies parcell of their Bishopricks, which they hold also in their politick capacity; And every one of these when any Parliament is to be holden, ought, ex debito justitiae to have a Writ of Summons. The Lords Temporall, Dukes, Marquisses, Earls, Viscounts, and Barons, who sit there by reason of their dignities which they hold by descent or creation, in number at this time 106: and likewise every one of these being of full age ought to have a Writ of Summons ex debito justitiae. The third estate is the Commons of the Realme whereof there be a Knights of Shires or Counties, Citizens of Cities, and Burgesses of Burghes. All which are respectively elected by the Shires or Counties, Cities and Burghes, by force of the Kings Writ ex debito justitiae, and none of them ought to be omitted: and these represent all the Commons of the whole Realme, and trusted for them, and are in number at this time 493.
Of what number.
In the beginning Romulus ordained an hundred Senators for the good government of the Common Wealth: afterwards they grew to 300,Festus. and so many were of the House of Commons in Fortescues time; who treating with what gravity Statutes are made, saith; Dum non unius, aut centum solum consultorum virorum prudentia, sed plus quam trecentorum electorum hominum, qualinumero olim senatus Romanorum regebatur, ipsa statuta edita sunt. ,
Erant autem Senatores majorum gentium, & Senatores minorum gentium, ex patriciis & nobilibus electi, hii ex populo. ,
And it is observed that when there is best appearance, there is the best successe in Parliament. At the Parliament holden in the Seventh year of the raign of Henry the fifth holden before the Duke of Bedford, Gardian of England, of the Lords Spirituall and Temporall, there appeared but thirty in all: at which Parlia-|-ment there was but one Act of Parliament passed, and that of no great weight. In Anno 50 Edw.3. all the Lords appeared in person, and not one by Proxie. At which Parliament, as it appeareth in the Parliament Roll, so many excellent things were sped and done, as it was called bonum Parliamentum.
And the King and these three Estates are the great Corporation or Body politick of the Kingdome: and do sit in two houses, viz. the King and Lords in one house, called the Lords House, and the Knights, Citizens and Burgesses in another house, called the House of Commons.
a For this word [Commons] see the statute of 28 Edw.3. whereby it is provided that the Coroners of Counties shall be chosen in full County per les Commons de mesme les Counties. Commons are in legall understanding taken for the frank Tenants or Freeholders of the Counties. And whosoever is not a Lord of Parliament and of the Lords House, is of the house of the Commons either in person, or by representation, partly coagmentative, and partly representative.
But of ancient time both Houses sat together. In 8 Hen.4. an Act of Parliament concerning the succession of the Crown intailed to Henry the fourth whereunto all the Lords severally sealed, and Sir John Tebetot the Speaker in the name of the Commons, put to his seale.
Note, that in the Letters to the Pope by all the Nobility of England at the Parliament holden in 28 Edw.1. the conclusion is this, In cujus rei testimonium sigilia nostra tam pro nobis quam pro tota Communitate praed. Regni Angliae praesentib’ sunt appensa. Thereby I gather, that at this time the Commons had no Speaker, but both Houses sat together, for if the Commons had then had a Speaker, they would have appointed him to have put to his seale for them, as in 8 Hen.4. they did. Certain it is, that at the first both Houses sat together, as it appeareth in the Treatise De modo tenendi Parliamentum.Of ancient Time both houses sat together. Vide Rot. Parl. 5 Edw.3. nu.3. and in other places in the same Roll, and in 6 Edw.3. in divers places it appeareth that the Lords and Commons sat together, and that the Commons had then no continuall Speaker, but after consultation had, they agreed upon some one or more of them that had greatest aptitude for the present businesse to deliver their resolution, which wrought great delaies of proceeding, and thereupon the Houses were divided, and the surest mark of the time of the division of them is, when the House of Commons at the first had a continuall Speaker, as at this day it hath.
After the division the Commons sat in the Chapter house of the Abbot of Westminster.
And this Court is aptly resembled to a Clock which hath within it many wheels, and many motions, all as well the lesser as the greater must move: but after their proper manner, place, and motion; if the motion of the lesser be hindered, it will hinder the motion of the greater.
This Court is called by severall names, as anciently [Witenage Mote] Conventus sapientum; Parliamentum, of which we have spoken in another place;Comitia, a coeundo, quia coeunt ibi deliberaturi deaarduis & urgentibus negotiis regni, & statum, & defensionem regni, & Ecclesiae Anglicanae concernentibus.bCommune concilium regni,cGenerale concilium regni, &dConcilium regni, and Assisa generalis, and Assisa ab assidendo, as Assisa de Clarendon 22 Hen. 1.
Upon some of the Records and Rols of the Parliament it is written,
- Perlege quae regni clarissima Conciliorum
- Sunt monumenta, aliter nil praeter somnia cernis.
e And Virgil writing of the Parliament of the Gods useth the same word of Concilium in the same sense.
- Panditur interea domus omnipotentis Olympi,
- Conciliumq; vocat divûm pater, atq; hominum Rex, &c.
Tacitus in vita Agricolae in the time of the Britons calleth it Conventus, à conveniendo.
| Ingulphus, who died before 1109. saithRex Eldredus convocavit magnates, Episcopos, proceres, & optimates ad tractandum de publicis negotiis regni.
Tully calleth it, Consessum senatorum, à considendo.
Parliaments in Scripture.
And the like Parliaments have been holden in Israel, as it appeareth in the holy History. Convocavit David omnes principes Israel, duces, tribunos, & praepositos turmarum, tribunos, centuriones, & qui praeerant substantiis & possessionibus regis, filiosque suos, cum eunuchis, & potentes, & robustissimos quosque in exercitu Jerusalem. And when they were all assembled, the King himself shewed the cause of calling that Parliament. Audite me fratres mei & populus meus, cogitavi ut aedificarem domum in qua requisceret arca foederis Domini, & ad scabellum pedum Dei nostri,Preparation.& ad aedificandum omnia praeparavi, &c ,b And the like Parliament did King Solomon son of King David hold. Congregavit Solomon majores natu Israel, & cunctos principes, tribunos, & capita familiarum de filiis Israel in Jerusalem, &c.c There was also a Parliament holden in the time of the Judges. Convenit universus Israel ad civitatem quasi homo unus eadem mente, & uno consilio, &c. And that Parliament builded on such unity, had blessed successe.
In this Court of Parliament the King is Caput, principium & finis. And as in the naturall body when all the sinews being joyned in the head do join their forces together for the strengthning of the body, there is ultimum Potentiae:Modus tenend. Parl. so in the politique body when the King and the Lords Spirituall and Temporall, Knights, Citizens, and Burgesses, are all by the Kings command assembled and joyned together under the head in consultationforthecommon good of the whole Realm, there is ultimum Sapientiae.
What Properties a Parliament Man Should have.
It appeareth in a Parliament Roll, that the Parliament being, as hath been said, called Commune concilium, every member of the House being a Counseller, should have three properties of the Elephant: First, that he hath no gall: Secondly, that he is inflexible and cannot bow: Thirdly, that he is of a most ripe and perfect memory: which properties, as there it is said, ought to be in every member of the Great Councell of Parliament. First, to be without gall, that is, without malice, rancor, heat, and envy, In Elephante melancholia transit in nutrimentum corporis. Every gallish inclination (if any were) should tend to the good of the whole body, the Common wealth. Secondly, that he be constant, inflexible, and not to be bowed, or turned from the right, either for fear, reward, or favour, not in judgement respect any person. Thirdly, of a ripe memory, that they remembring perils past, might prevent dangers to come, as in that Roll of Parliament it appeareth. Whereunto we will adde two other properties of the Elephant, the one, that though they be Maximae virtutis, & maximi intellectus, of greatest strength, and understanding, tamen gregatim semper incedunt, , yet they are sociable, and goe in companies: for animalia gregalia non sunt nociva, sed animalia solivaga sunt nociva. Sociable creatures that goe in flocks or heards are not hurtfull, as Deer, Sheep, &c. but Beasts that walk solely, or singularly, as Bears, Foxes, &c. are dangerous and hurtfull. The other that the Elephant is Philanthropos, homini erranti viam ostendit, and these properties ought every Parliament man to have.
Of Records of Parliament.
The reason wherefore the Records of Parliament have been so highly extolled, is, for that therein is set down in cases of difficulty, not only the judgment, or resolution, but the reasons, and causes of the same by so great advice.a It is | true that of ancient time in judgements at the Common law, in cases of difficulties either criminall, or civill, the reasons and causes of the judgement were set down in the Record, and so it continued in the reigns of Edw.1. and most part of Edw.2. and then there was no need of Reports: but in the reign of Edw.3. (when the law was in his height) the causes and reasons of judgments, in respect of the multitude of them are not set down in the Record, but then the great Casuists and Reporters of cases (certain grave and sad men) published the cases, and the reasons and causes of the judgments or resolutions, which from the beginning of the reign of Edw.3. and since we have in print. But these also, though of great credit, and excellent use in their kind, yet far underneath the Authority of the Parliament Rols, reporting the Acts, Judgements, and resolutions of that highest Court.
The Summons of Parliament.
The King de advisamento concilii (for so be the words of the Writ of Parliament) resolving to have a Parliament, doth out of the Court of Chancery send out writs of Summons at the least forty days before the Parliament begin: Every Lord of Parliament either Spirituall, as Archbishops, and Bishops, or Temporall, as Dukes, Marquisses, Earls, Viscounts and Barons; Peers of the Realm, and Lords of Parliament ought to have severall writs of Summons.
And all the Judges of the Realm, Barons of the Exchequer of the Coif, the Kings learned Councell,* and the Civilians Masters of the Chancery are called to give their assistance and attendance in the upper house of Parliament, but they have no voices in Parliament; and their writs differ from the writs to the Barons: for their writs be, Quòd intersitis nobiscum & cum caeteris de consilio nostro (and sometimes nobiscum only) super praemissis tractaturi, vestrumque consilium impensuri; but the writ to the Barons is, Quod intersitis cum praelatis, magnatibus & proceribus super dictis negotiis tractaturi, vestrumque consilium impensuri.
Spirituall Assistants Procuratores Cleri.
And in every writ of Summons to the Bishops, there is a clause requiring them to summon these persons to appear personally at the Parliament, which is in these words, Praemonientes Decanum & capitulum Ecclesiae vestrae Norwicensis, ac Archidiaconos totumque clerum vestrae Dioces. quod iidem Decani & Archdiaconi in propriis personis suis, ac dictum capitulum per unum, idemque clerus per duos procuratores idoneos plenam & sufficientem potestatem ab ipsis capitulo & clero divisim habentes praedict’ die & loco personaliter intersint ad consentiendum hiis quae tunc ibidem de communi consilio dicti regni nostri divina favente clementia contigerit ordinari: and the Bishop under his seal make Certificate accordingly. And these are called Procuratores cleri, and many times have appeared in Parliament as Spirituall Assistants, to consider, consult and consent, ut supra, but had never voices there, because they were no Lords of Parliament. Some have thought, that because the Clergy were not party to the election of the Knights, Citizens, and Burgesses, that these Procuratores Cleri were appointed to give their consent for them, but then they should have had voices, which questionlesse they never had. And by the words of the writ it was to consent to those things which by the Common Councell of the Realm should happen to be ordained, so as their consent was only to such things as were ordained de communi concilio Regni, and that there might be an Act of Parliament without them: and in many cases multitudes are bound by Acts of Parliament which are not parties to the elections of Knights, Citizens, and Burgesses, as all they that have no | freehold, or have freehold in Auncient demesne, and all women having freehold or no freehold, and men within the age of one and twenty years, &c. And it appeareth by the treatise De modo tenendi Parliament’, &c. that the Proctors of the Clergy should appear, cum praesentia eorum sit necessaria (which proveth that they were voicelesse Assistants only) and having no voices, and so many learned Bishops having voices, their presence is not now holden necessary.
It is to be observed that in the writs of Parliaments to the Bishops (being Lords Ecclesiasticall secular) they are named by their Christian names and name of their office; as, Rex, &c. Reverendissimo in Christo patri Johanni eadem gratia Archiepiscopo Cantuar’.or Rex, &c. Reverendo in Christo Patri Johanni Episcopo Norwicens. &c. But if the Sirname be added it makes not the writ vicious.
But the Abbots and Priors being Lords of Parliament, religious and secular, might be named by the name of their office only, as Rex dilecto sibi in Christo Abbati Sancti Edmondi de Bury.&c.
A Duke, a Marquisse, an Earl, and Viscount are regularly named by their Christian names, and the names of their dignities, and rarely (yet sometimes) by their Sirnames; nor are they named by their knighthood, if they have any, but rarely. If a Baron be a knight, he is regularly named by his Christian name, Sirname, and by Miles or Chivalier, and his Barony. If he be no knight, then he is named by his Christian name, and the name of his Barony; but if the Sirname be added, it maketh not the writ vicious. And this, holdeth as well where the Baron taketh his dignity of a place, as where he taketh it of his Sirname; but where the Sirname is dignified, there to make a formall writ, it is good to add the place of his Barony.
Of ancient time the Temporall Lords of Parliament were commanded by the Kings writ to appear, In fide & homagio, quibus nobis tenemini, and in the reign of Edw.3. in fide & ligeancia, and sometime, in fide & homagio but at this day constantly in fide & ligeancia, because at this day there are no feudall Baronies in respect whereof homage is to be done, which in 21 Edw.3 was the true cause of this alteration.
The Ecclesiasticall Barons secular or regular were commanded by the Kings writ to be present, in fide & dilectione, quibus nobis tenemini; as the Bishops are at this day.
We find in the Rols of Parliament a writ in Anno 23 Ric.2. and successively in every Parliament untill and in the fift year of Hen.6 amongst the Barons that came to the Parliament, it is said Magistro Thomae de la Warre, and some say that the addition of Magister, was to distinguish him from them that were knights: as in the Roll of 1 Edw.4. amongst the Barons it is said, Johanni de Audeley armigero, for that the rest of the Barons (saving himself) and the Lord Clynton were Chivaliers. And others doe hold that he was of the Clergy before the dignity descended to him, and in that respect he was called Magister.
In the Roll of 5 Hen.5 and in many succeeding Rols we find Baron applied to the Lord of Greystock, as Radulpho Baroni de Greistock, and Johanni Baroni de Greistock, and to few other.
In many Rols we find the Barons that were Knights, named Chivaliers, wherein we observed, that they liked to be called Chivaliers rather that milites after the legall word (for Eques auratus? is not used in Law.) For example, In anno 1 Edw.4. Edmundo Grey de Ruthin Chivalier, &c. and under subscribed thus, Milites omnes, exceptis Johanne de Audeley armigero, & Johanne domino de Clynton. And in 3 Edw.4. all the Barons (saving the Lord Scales) have the additions of Chivaliers, and subscribed thus, Equites aurati omnes, praeter dominum, Scales. And in 7 Edw.4. all the Barons have the addition of Chivaliers and therefore subscribed thus. Equites aurati omnes. Hereby and by many others it appeareth that the Barons, if they were Knights, were so named; and that they were not named Chivaliers unlesse they were Knights. But in the reign of Hen.8. and | since, Barons are named Chivaliers in the writ of Summons, though they be no Knights.
Baner legally Banerium,vexillum, Banerher, unde Banerherius or Banerius, i. Baro, vexillarius major, & Banerettus a diminutive of Banerius, vexillarius minor. A Baron is called Banerherius or Banerius of the Banner, (being the Ensigne of his honour) serveth for a guide and direction: so the Baron observing the end of his Nobility should be an example and guide to others, as well in war as in peace, in all notable habilities and vertues, and so of the Baneret: both the Baron and the Baneret hath one kinde of Baner: for the Baneret is created in the field in the Kings Host, and (amongst other things) by cutting the sharp point of his Pennon, and making it a Banner i. Vexillum Baronis: so as the Baneret hath the Baner, but not the dignity of the Baron. And this doth notably appear by the case in 22 Edw.3. the very words of which resolution I will first set downe, and then the effect. Un suit challenge pur ceo que il suit a Baner, & non allocatur: car sil soit a baner, & ne tient per barony, il serra in Assise That is, one was challenged because he had the Banner and was a Baneret & non allocatur by the rule of the Court, because albeit he had the Banner, yet ne tient per Barony, that is, he was no Baron of Parliament.
Nota seriem temporis, John Coupland a valiant Leader in Anno 20 Edw.3. neer Durham, at Nevils Castle, took in aperto praelio, David the second, King of Scots; for which King Edw.3. created him Knight Baneret, and gave him lands and livings, and in 22 Edw.3. the case in law fell out.
For this order of Knighthood see Camdens Britannia 124, and for this case of Sir John Coupland, Camden in Linc. pag. 618. See 35 Hen.6. fo.46. There the challenge was that he was a Baneret a Lord of Parliament. See 48 Edw.3. 30. 48 Ass. pl. ultimo. Lib. 6. fo. 55. But Sir John Coupland was not the first Baneret that England had, as some have thought, and was with us before the reign of Edw.3. for in Pelle exitusanno 8 Edw.2. in Scaccario Johannes de Cromlewele Banerettus. And ex compoto GarderobaeAnno 9 Edw.2. Nicholaus de Gray was declared by Writ of Edward the Second to be de familia regis tanquam Banerettus, both for his precedency and sallery.
For summoning of the Commons a Writ goeth out to the Lord Warden of the Cinque Ports for the election of the Barons of the same, who in law are Burgesses, and to every Sheriffe of 52 Counties in England and Wales for the choise and election of Knights, Citizens, and Burgesses, within every of their Counties respectively.
The beginning of the Parliament.
At the retorne of the Writs the Parliament cannot begin but by the Royall presence of the King either in person or by representation. By representation two wayes,The Royall Person represented two wayes. either by a Gardian of England by Letters Patents under the Great Seale when the King is in remotis out of the Realme: or by Commission under the Great Seale of England to certain Lords of Parliament representing the person of the King, he being within the Realme inrespect of some infirmity.
a The patent of the Office of a Gardien of England reciteth his speedy going beyond sea, or in remotis, or urgent occasions and the cause thereof. Nos quòd pax nostra tam in nostra absentia quam praesentia inviolabiliter observetur, & quòd fiat communis justitia singulis conquerentibus in suis actionibus & querelis, de fidelitate dilecti & fidelis nostri Edwardi ducis Cornubiae, &comitis Cestriae filii nostri primogeniti plenarie confidentes, constituimus ipsum custodem dicti regni nostri ac locum nostrum tenent’ in eodem regno quam diu in dictis transmarinis partibus moram fecerimus, vel donec inde aliud duxerimus. (And this is that capitalis Justiciarius, mentioned in Mag. Carta cap. 11. when the King is extra regnum ) with a clause of assistance. But yet if any Parliament is to be holden, there must be a speciall Commission to the Gardien, to begin the Parliament, and to proceed therein: but the Teste of the Writ of Summons shall be in the Gardiens name.
| A Parliament was holden in quinti quinto, viz. Anno 5 Hen.5. before John Duke of Bedford, brother and Lieutenant to the King, and Gardien of England, and was summoned under the Teste, of the Gardien or Lieutenant. [ It is enacted, that if the King being beyond the seas, cause to summon a Parliament in this Realme, by his Writ under the Teste of his Lieutenant: and after such summons of Parliament gone out of the Chancery, the King arriveth in this Realm: that for such arrivall of the same King such Parliament shall not be dissolved, but the Parliament shall proceed without new summons.]
a In 3. Edw.4. a Parliament was begun in the presence of the King and prorogued untill a further day: and then William Archbishop of York the Kings Commisary by Letters Patents held the same Parliament and adjourned the same, &c. The cause of the said prorogation was, for that the King was enforced to go in person to Glocerstershire to represse a rebellion there.
As hath been said, the Kings person may be represented by Commission under the Great Seale to certain Lords of Parliament authorizing them to begin the Parliament, and both the Gardien and such Commissioners do sit on a forme placed neer to the degrees that go up to the Cloth of Estate.
And in 28 Eliz. the Queen by her Commission under the Great Sealebearing date the 28 of October Anno 28, reciting that she for urgent occasions could not be present in her Royall Person, did authorize John Whitguift Archbishop of Canterbury, William Baron of Burghley Lord Treasurer of England, and Henry Earle of Derby Lord Steward of the Houshold then being, Ad inchoandum, &c. tenendum, &c. & ad procedendum, &c. & ad faciend’ omnia & singula, &c. nec non ad Parliamentum adjornandum & prorogandum, &c. which Commission is entred in haec verba in the Journall Book in the Lords house, and in the upper part of the page above the beginning of the Commission is written, Domina Regina repraesentatur per Commissionarios, viz. &c. The 29 day of October, the said Commissioners sitting on a forme before the Cloth of Estate, after the Commission read, adjourned the Parliament untill the 15 of February following, &c. And this Parliament began the 29 of October, and not the 15 of February, wherein the Printed Book is mistaken, for then the Parliament begun, and was prorogued.
On the first day of the Parliament, the King or most commonly the Lord Chancellor or Keeper of the Great Seale in the presence of the Lords and Commons, do shew the causes of the calling of his High Court of Parliament, but the | King may appoint any other: as many times, the Chiefe Justice of England, and sometime, some other, as may appear in the Parliament Rols, only one I will transcribe.
It is true the Commons are to chuse their Speaker: but seeing that after their choice the King may refuse him, for avoiding of expence of time and contestation, the use is (as in the Conge de ellier, of a Bishop) that the King doth name a discreet and learned man whom the Commons elect: but without their election no Speaker can be appointed for them, because he is their mouth, and trusted by them, and so necessary, as the House of Commons cannot sit without him: and therefore a grievous sicknesse is a good cause to remove him, as in 1 H.4. John Chenye Speaker chosen and allowed, was for sicknesse, so as he could not serve, discharged, and Sir John Doreward chosen in his place: and so was William Stutton, after he was chosen and allowed Speaker, removed for grievous sicknesse, and Sir John Doreward chosen in his place. At the Parliament holden in 15 Hen.6. Sir John Tirrell Knight was chosen and allowed Speaker, and for grevious sicknesse removed, and William Beerly Esq; chosen in his place, &c.
But sicknesse is no cause to remove any Knight, Citizen or Burgesse of the House of Commons: So note a diversity between the Speaker, and any other of the House of Commons, and this diversity being not observed begat an error by some opinion in 38 Hen.8. tit. Parliament Brook 7. for continuall experience is to the contrary.
The presentment of the Speaker.
What the speaker shall do when he is chosen.When the Commons have chosen their Speaker, the person elected standing in his place disabling himselfe to undergoe so weighty a charge, as in his discretion he thinks fit, desires them to proceed to a new choise: which being denied, and he set in the Chaire, then he prayeth them to give him leave, that he may disable himselfe to the King: after this they present him to the King in the Lords House; where after he hath disabled himselfe to speak before the King, and for the whole body of the Realme, and made humble suit to the King, left by his insufficiency the businesse of the Realme may be hindred, to be discharged, and a more sufficient man to be chosen: if he be allowed by his Majestie,The protestation of the Speaker. then he maketh a Protestation consisting on three parts: First, that the Commons in this Parliament may have free speech, as of right and by custome they have used and all their ancient and just priviledges and liberties allowed to them. Secondly, that in any thing he shall deliver in the name of the Commons (if he shall commit any error) no fault may be arrected to the Commons, and that he may resort again to the Commons for declaration of their true intent, and that his error may be pardoned. The third is; that as often as necessity for his Majesties service, and the good of the Common wealth shall require, he may by the direction of the House of Commons have accesse to his Royall Person.
| This is in the Parliament Rols called a Protestation in respect of the first part, the nature whereof is to be an exclusion of a conclusion, and herein that the House of Commons be not concluded to speak only of those things which the King or Lord Chancelor, &c. hath delivered to them to be the causes of the calling of this Court of Parliament, but in a Parliamentary course of all other arduous and urgent businesse which principally consist in these five branches as it appeareth in the Writs of Summons to the Lord Spirituall and Temporall, viz.
The matters of Parliament.
1. Touching the King. 2. The state of the Kingdome of England. 3. The defence of the Kingdome. 4. The state of the Church of England: and 5. The defence of the same Church. And this appeareth by expresse words in the Parliament Writ in these words: Pro quibusdam arduis urgentibus negotiis, nos, statum, & defensionem regni nostri Angliae, & Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum, &c. teneri ordinavimus, &c. And these words the state and defence of the Kingdome are large Words, and include the rest. And though the state and defence of the Church of England be last named in the Writ, yet is it first in intention, as if appeareth by the title of every Parliament: As for example, To the honour of God and of holy Church, and quietness of the people, &c.
Now for as much as divers lawes and statutes have been enacted and provided for these ends aforesaid, and that divers mischiefs in particular, and divers grievances in generall concerning the honour and safety of the King; the state and defence of the Kingdome and of the Church of England might be prevented, an excellent law was made Anno 36 Edw.3. which being applyed to the said Writs of Parliament doth in few and effectuall words set downe the true subject of a Parliament in these words. For the maintenance of the said Articles and Statutes, and redresse of divers mischiefs and grievances which daily happen, a Parliament shall be holden every year, as another time was ordained by a Statute.
Before the Conquest Parliaments were to be holden twice every year, Celeberrimus autem ex omni satrapia bis quotannis Conventus agitur. King Edward the First kept a Parliament once every two year for the most part, and now it is enacted, that a Parliament shall be holden once every year.
The Roman vanquished our Ancestors the ancient Britains, for that they assembled not, they consulted not in common with them, not Common Councels, as Tacitus in vita Agricolae saith.Nec aliud adversus validissimas gentes pro nobis utilius, quam quod incommune non consulunt. Rarus ad propulsandum commune periculum conventus: Ita dum singuli pugnant, universi vincuntur. But to return to the matters of Parliament.Nota, Commune concilium Conventus.
And it is enacted and declared by Authority of Parliament in Anno 4 Hen.8. That all suits, accusements, condemnations, executions, fines, americiaments, punishments, corrections, charges, and impositions at any time from thenceforth to be put, or had upon any member, either of that present Parliament, or at any Parliament at any time after that Act to be holden, for any Bill,Neq; timida probitas, neque improba fortitudo Rei publicae est utilis. speaking, reasoning, or declaring of any matter or matters concerning the Parliament, to be communed, or treated of, be utterly void and of none effect. Which latter branch is generall. Now what matter or matters concern the Parliament appear before. And this clause of the Act of 4 Hen. 8. is declaratory of the ancient law and custome of the Parliament.
And this doth not only appear by the Writs directed to the Lords of Parliament, but by the Writs for election of the Commons. For example. the Writ to the Sheriffe of Norfolk for election of the Knights Citizens, and Burgesses within that County is Rex Vicecomiti Norff. Salutem. Quia nos de avisamento & assensu concilii nostri pro quibusdam arduis & urgentibus negotiis, nos, statum, & Defensionem regni nostri Angliae & Ecclesiae Anglicanae concernentibus quod-|-dam. Parliamentum nostrum apud, &c. teneri ordinaverimus, & ibidem cum Praelatis, magnatibus, & proceribus dicti regni nostri colloquium habere & tractatū: ipsi Vicecom. Norff. praecipimus firmiter injungend’, quod facta proclamatione in proximo comitatu tuo post receptionem ejusdem brevis, duos milites gladiisNota ad Faciendum & consentiendum.cinctos, &c. elegi faceret, &c.ad faciendum & consentiendum hiis quae tunc ibidem de communi concilio nostro Angliae (favente Deo) contingerent ordinarisuper negotiis antedictis, ita quòd pro defectu potestatis hujusmodi, seu propter improvidam electionem Militum, Civium & Burgensium praedict’ dicta negotia nostra infecta non remanerent quovismodo.Nota, super negotiis antedictis. And this power extendeth equally to all Knights, Citizens and Burgesses of Parliament.
What the Speaker shall doe after his allowance.
After the Commons with their Speaker are come from the Lords house, and that the Speaker is set in the Chair, then he desireth the Commons, that seeing they have chosen him for their mouth, that they would favourably assist him in their arduous and important affairs, and that he will doe them the best service he can with all diligence and faithfull readinesse, or to the like effect.
The Writs of Summons of Parliament, which are to be found in the close Roll from time to time.
Seeing the summons of Parliament (as hath been said) is by the Kings Writs, which tend to the beginning of the Parliament, it shall be necessary to speak somewhat of those writs. And it is to be observed, that the substance of those writs ought to continue in their originall essence without any alteration, or addition, unlesse it be by Act of Parliament. For if originall writs at the Common law can receive no alteration or addition but by Act of Parliament, à multo fortiori, the writs for the Summons of the highest Court of Parliament can receive no alteration, or addition, but by Act of Parliament. Wherec the writs of Summons issued out of the Chancery, and were returnable in the Court of Parliament, the return thereof could not be altered, and returnable into the Chancery, but by Act of Parliament. And because the words of the writ for election of Knights, &c. were,dduos milites gladiis cinctos, &c. it required an Act of Parliament, that notable Esquires might be eligible.
Walsingham saith, that in Anno Domini 1404., which was anno 6 Hen.4. in the writs of the summons of Parliament, there was added by the King a commandment in the writ, that no Lawyer should be returned Knight or Burgesse, (but the historian is deceived, for there is no such clause in those writs, but it was wrought by the Kings Letters by pretext of an Ordinance in the Lords House, in 46 Edw.3) But at the next Parliament in 7 Hen.4. at the grievous complaint of the Commons, being interrupted of their free election by those letters (which were letters of Justice and right) it is amongst other things, enacted, That elections should be freely, and indifferently made notwithstanding any prayer, or commandment to the contrary, i. sine prece, by any prayer or gift, & sine precepto, without commandment of the King by writ, or otherwise, or of any other; which was a close, and prudent salve, not only for that fore, but for all other in like case, and is but an Act declaratory of the ancient law and custome of Parliament.
Petitions in Parliament.
On the first day of the Parliament, after the Commons be departed to choose their Speaker, then are certain Justices Assistants, and Civilians Masters of the Chancery Attendants, viz. four Justices, and two Attendants | appointed to be receivers of the Petitions of England, Ireland, Wales, and Scotland, and that those that will deliver their petitions, are to deliver them within six days following. At that time there are other Justices and Civilians attendants, viz. three Justices, and two Attendants appointed to be reveivers of petitions for Gascoign and other places beyond the Seas, and of the Isles, and that they deliver their petitions within six days, &c.
Of Petitions in Parliament some be of Right, some of Grace, and some mixt of both: some preferred by the Lords Spirituall, some by the Lords Temporall, some by the Commons, some by the Lords and Commons. Extra Parliamentum nulla petitio est grata, licet necessaria; In Parliamento nulla petitio est ingrata, si necessaria. All Petitions ought to contain convenient certainty and particularity, so as a direct answer may be given to them.
b Petitions being timely preferred (though very many) havebeen answered by the law and custome of Parliament before the end of the Parliament. This appeareth by the ancient Treatise, De modo tenendi Parliamentum, &c. in these words faithfully translated in a fair and ancient Manuscript, for Bils and Petitions. The Parliament ought not to be ended while any Petition dependeth undiscussed or at the least, to which a determinate answer is not made.
The Commons being the generall Inquisitors of the Realm, have principall care in the beginning of the Parliament to appoint days of Committees, viz. of grievances (both in thee Church and Common-wealth) of | Courts of Justice, of priviledges, and of advancement of trade. These Committees when they meet, they elect one of them to sit in the Chair in likenesse of the Speaker: the Committee may examine and vote the questions handled by them, and by one, whom they appoint, report their resolution to the House, and the House, sitting the Speaker, to determine the same by question.
Any Lord of the Parliament by licence of the King upon just cause to be absent, may make a Proxy: and in the bundle of Proxies Anno. 5 Hen.5. it appeareth, that in those days a Spirituall Lord of Parliament might have made his Proxie to the Procurators of the Clergy, or to any other Clerk, but at this day he cannot make it but to a Lord of Parliament; but a Knight, Citizen, or Burgesse of the house of Commons cannot by any means make any Proxy, because he is elected and trusted by multitudes of people.
Of the ancient Treatise called Modus tenendi Parliamentum.
Now for Antiquity and Authority of the ancient Treatise, called Modus tenendi Parliamentum, &c. whereof we make often use in this part of the Institutes; certain it is, that this Modus was rehearsed and declared before the Conquer our at the time of his Conquest, and by him approved for England, and accordingly the Conquerour according to Modus held a Parliament for England, as it appeareth in 21 Edw.3.fo. 60.
After King Henry the second had conquered Ireland, he fitted and transcribed this Modus into Ireland in a parchment Roll, for the holding of Parliaments there, which no doubt Henry the second did by advice of his Judges, being a matter of so great weight and legall. This Modus in the parchment Roll transcribed as aforesaid, by Henry the second remained in Ireland, and in anno 6 Hen.4. was in the custody of Sir Christopher Preston Knight, a man of great wisdome and learning, which Roll King Henry the fourth in the same year, De assensu Johannis Talbot Chivalier, his Lieutenant there, and of his Councell of Ireland, exemplified for the better holding of the Parliaments there; and in the exemplification it expressly appeareth that Henry the second did transcribe this Modus, as is abovesaid.
This Modus was seen by the makers of the statute of Magna Carta, Anno 9 Hen.3. ca.2. concerning the reducing of the ancient reliefs of entire Earldomes, Baronies, and Knights fees according to such proportions as is contained in the Modus, which they could not have done so punctually, if they had not seen the same, whereof you may read more at large in the First part of the Institutes, Sect. 103. fo.76. Verbo Relief. And some part of this Modus is cited in the Parliament Roll, Anno 11 Ric.2. and other Records of Parliament, and upon diligent search we can find nothing against it. But many very ancient copies you may find of this Modus, one whereof we have seen in the reign of Hen.2. which containeth the manner, form, and usage of Gilbert de Scrogel Marshall of England, in what manner he occupied and used the said room and office in all his time, and how he was admitted, &c. at the Coronation of Henry the second and of his Knight marshall, and other inferiour officers, &c. and adjoyned thereunto, and of the same hand is this Modus, as fit for him to know.
But less it might be said to me, as it was once said to an Oratour who having spoken much in commendation of Hercules: It was demanded of one that stood by, Quis vituperavit? Ad quod non fuit responsum. But now let us return to Proxies.
A Lord of Parliament by licence obtained of the Queen to be absent, made a Proxy to three Lords of Parliament, Conjunctim & divisim dans eispotestatem tractandi, tractatibusque auxilium & consilium impendendi, atque statutis & ordinationibus, quae inactitat’ contigerint, consentiendi, ita quod non sit melior conditio occupantis. And one of the Procurators gave consent to a bill, and | the two others said, not content. And first it was by order of the Lords debated amongst the Judges and Civilians attendants, and conceived by them that this was no voice, and the opinion was affirmed by all the Lords of Parliament seriatim. Another question was moved at that time, that if a Lord of Parliament make a Proxy, and after come into the Lords house of Parliament, and sit there without arguing, consenting or speaking any thing: and it was conceived by the Judges and Civilians, that his sitting there without saying any thing was a revocation in law of his proxy, a Fortiori, if he moved, or spake to any matter there propounded, and their opinion was resolved by the Lords seriatim. And these were the proxies of the Bishop of Bathe, the Lord Howard Chamberlain, and of the Lord Windesor.
King John in the 13 year of his reign being in extreant fear of both the Pope and the French King, and especially of his own subjects (and what is fear, saith Solomon, but a betraying of the succours that reason offereth) sent Ambassadours to Admiralius Murmelinus great Emperour of Turky Sir Thomas Hertington and Sir Ralph Nicholson Knights, and Sir Robert of London Clerk, nuntios suos secretissimos, to offer to be of his Religion, and to make his Kingdome Tributary to him, and he and his subjects to be his vassals, and to hold his Kingdome of him. But that Infidell great Prince, as a thing unworthy of a King, to deny his religion, and betray his kingdome, utterly refused to accept. King John in the 14 year (the next year) of his reign by his Charter 15 May, by the threats and perswasion of the Popes Commissary Pandulphus surrendred his kingdomes of England and Ireland to Pope Innocent the Third, cum communi consilio Baronum (as he inserted therein) and that thence forward he would hold his Crown as feodary to the Pope, paying for both the said kingdomes 1000. marks. Whereupon doing homage and fealty to the Pope by the hand of Pandulphus and taking off the Crown from his head surrendred it to the Pope by Pandulphus, at whose feet he laid also the royall Ensignes, his Scepter, Sword and Ring; all which was afterward accepted, approved and ratified by the Pope, by his Bull which was called Bulla aurea.
Gregorius papa petiit à Rege Edw.1. per literas annum censum 1000 merc. Rex respondet se sine praelatis & proceribus regni non posse respondere, & quod Jurejurando in Coronatione sua fuit astrictus, quod jura regni sui servaret illibata, nec aliquid quod Diadema tangat regni ejusdem absque ipsorum requisit’ consilio faceret.
In anno 40 Edw.3, the Pope by his Ambassador demanded of the King Homage for the kingdome of England and land of Ireland, and the averages of 1000. marks by the year, granted by King John to Pope Innocent the third and his successors, and threatned that if it were not paid, the Pope was resolved to proceed against the King. Whereupon the King in the same year calleth his Court of Parliament, and in the beginning of that Parliament (saith the Record),Fuit monstre a les Prelates, Dukes, Countes, Barons, les Chivaliers des Counties, Citizens & Burgesses en le presence le Roy per le Chancelor, coment’ ils avoient entendue les causes del summons del Parliament en generall, mes la volunte le Roy fuist que les causes feussent monstres a eux en especiall: lour disoit coment le Roy avoit entendue que le Pape per force dun fait quel il dit que le Roy Johan fesoit au Pape de luy faire homage pur le realme D’engleterre & la terre D’irland,& que percause du dit homage qil luy deveroit paierchescun an perpetuelment mille marcs, est en volunte de faire proces deversle Roy & son roialm pur le dit service & cens recoverir; de qoi le Roi pria as dits Prelats, Dukes, Countes & Barons lour avys & bon conseil, & ce qil enferrior, en case que le Pape vorroit proceder devers luy, ou son dit roialme per celle cause: & les Prelats requeroient an roy quils se purroient per eux soul aviser & respondre lendemain, queux Prelatz le dit lendemain adeprimes per eux mesmes, & puis les autres Dukes, Countes, Barons & Gentz respondirent & disoient, que le dit Roy Johan ne nul autre purra mettre lui, ne son roialme, ne son people | en tiele subjection sanz assent & accorde deux: & les communes sur ce demandez & avisez respondirent en mesme le manere; sur qui feust ordeine, & assentu per commune assent en manere quensuyt.En se present Parlement tenuz a Westm’ Lundy proschein apres la invention de la Seinte Croice lan du reign le Roy Edward quarantisme, tant sur lestat de Seinte Eglise, come des droits de son roialm & de sa Corone maintenir, entre autres choses estoient monstrez coment ad este parlee, & dit que le Pape per force dun fait que le il dit que le Roi Johan, iadis Roy d’engleterre fesoit au Pape au perpetuite de luy faire homage pur le Roialme Dengleterre & la terre de Irland, & per canse dudite homage de luy rendre un Annuel rent: ad este en volunte de faire processe devers le Roi pur les ditz services & ceus recoverir; la quele chose monstree as Prelats, Ducs, Countes, Barons, & la commun’ pur ent avoir lour avys & bon conseil, & demandee de eux ce qe le Roi enferra en case que le Pape vorroit proceder ou rien attempter devers lui ou son roialme per celle cause? Queux Prelats, Ducs, Countes, Barons & Communes en sur ce plein deliberacion responderont & disoient dune accorde, que le dit Roy Johan ne nul autre purra mettre luy ne son roialme ne son people en tiel subjection sanz assent de eux, & come piert per pluseurs evidences, que si ce feust fait, ce feust fait sanz leur assent, & encontre son serement en sa Coronacion, Et outre ce le Ducs, Countes, Barons, Gents & Communes accorderent & granterent que en case que le Pape se afforceroit ou rien attempteroit per proces, ou en auter manere de fait de constreindre le Roi ou ses subjects de per fair ce quest dit q’il voet clamer telle partie qils resistront & contreesterront ove toute leur puissance.
This Noble and prudent King took the fairest and surest way to give satisfaction, whereof the Pope being certified, the matter ever since hath rested in quiet.
By the ancient law, and custome of the Parliament a proclamation ought to be made in Westminster in the beginning of the Parliament, that no man upon pain to lose all that he hath, should during the Parliament in London, Westminster, or the suburbs, &c. wear any privy coat of plate, or goe armed, or that games or other playes of men, women, or children, or any other pastimes or strange shews should be there used during the Parliament: and the reason hereof was, that the High Court of Parliament should not thereby be disturbed, nor the members thereof (which are to attend the arduous and urgent businesse of the Church and Common wealth) should not be withdrawn.
* It is also the law, and custome of the Parliament, that when any new device is moved on the Kings behalf, in Parliament for his aid, or the like, the Commons may answer, that they tendred the Kings estate, and are ready to aid the same, only in this new device they dare not agree without conference with their Countries; whereby it appeareth, that such conference iswarrantable by the law and custome of Parliament.
And it is to be observed, though one be chosen for one particular County, or Borough, yet when he is returned, and sit in Parliaments, he serveth for the whole Realm, for the end of his comming thither, as in the writ of his election appeareth, is generall, ad faciendum & consentiendum hiis quae tunc & ibidem de communi consilio dicti regni nostri (favente deo) contigerint ordinari super negotiis praedictis, i. pro quibusdam arduis & urgentibus negotiis nos, statum, & defensionem regni nostri Angliae & Ecclesiae Anglicanae concernentibus, which are rehearsed before in the writ.
And because we have a case in 3 Edw. 3. 19. concerning the law and custome of Parliament, we have thought good to set down the Record of that case De verbo in verbum, and then to examine the report of the said case, and the opinion there delivered, wherein we shall desire the learned to consider well the statute of 5 Ric. 2. stat.2. cap.4. and thereupon to consider what (as that statute speaketh) hath been done of old times, &c. And how that Act saith done, and not said.
Johannes Episcopus Winton in misericordia pro pluribus defaltis. Idē Iohannes Episcopus attachiat’ fuit ad respond’ Domino Regi,Note, that this was by writ originall. de eo quare cum in Parliamento Regis apud novā Sarū nuper tent’ per ipsum Dominū Regem inhibitum fuisset, ne quis ad dictum Parliamentum summonitus ab eodem recederet sine licenc’ Regis: Idem Episcopus durante Parliamento praedict. ab eodem sine licentia Regis recessit in Regis contemptum manifestum,The Declaration. & contra inhibitionem Regis supradictam. Et unde idem Dominus Rex per Adam de Fincham, qui sequitur pro eo, dicit, quod praedictus Iohannes Episcopus fecit ei transgress. & contemptum praedict. &c. in contempt. Regis mille librarum. Et hoc offert verificare pro Domino Rege, &c.
Et praedictus Episcopus in propria persona sua venit, & defendit omnem contemption & transgress. & quicquid, &c. & dicit, quod ipse est unus de paribus regni, & Praelatus sacros. Ecclesiae, & eis in est venire ad Parliamentum Domini Regis per summonitionē & pro voluntate ipsius Domini Regis cum sibi placuerit,Nota hoc. Et dicit, quòd si quis | eorum deliquerit erga Dominum Regem in Parliamento aliquo, in Parliamento debet corrigi & emendari, & non alibi in minor’ cur’ quàm in Parliamento: per quod non intendit, quod Dominus Rex velit in cur’ hic de hujusmodi transgr. & contempt. factis is Parliamento responderi, &c. Et super hoc datus est eis dies coram Rege à die Sancti Trin. in quindecem dies ubicunq; &c. salvis rationibus. Ad quem diem praed. Episcopus venit in propria persona sua, & datus est ei dies coram domino Rege à die Sancti Mich. in 15 dies ubicunq; &c. in eodem statu quo nunc &c. salvis rationibus suis, &c. Ad quemdiemvenitpraedict.Adamquisequitur, &c. Et similiter praedictus Episcopus in propria persona sua. Et praedictus Adam pro praedicto Domino Rege dicit, quòd cum placeat ei Parliamentum suum tenere pro utilitate regni sui de regali potestate sua facit illud summoneri ubi & quando, &c. pro voluntate sua, & etiam facit prohiberi existentibus tunc ad Parliamentum, ne quis eorum abinde recedat contra prohibitionem suam, &c. absque licentia, &c. Et si quis eorum abinde recedat contra prohibitionem, &c. in contempt.This is the allegation of the Kings Attorny. regis, &c. bene liceat ipsi Domino Regi sumere sectam erga hujusmodi delinquentes in qua curia placeat sibi, &c. Et ex quo Dominus Rex pro voluntate sua Parliamenta sua tenet, &c. petit judicium pro ipso domino rege, si idem Dominus Rex duci debeat, seu compelli ad prosequend’ in hac parte alibi contra voluntatem suam, &c.
Et praedictus Episcopus dicit ut prius, quòd cum aliquis deliquerit in Parliamento, ibidem debet corrigi & emendari,The B. maintains his former plea to the jurisdiction. &c. & licet aliquis summonitus esset veniendi ad Parliamentum, & non venisset ibidem, debet puniri, per quod non intendit, quòd dominus rex velit alibi responderi quam in Parliamento, &c. Et super hoc datus est eis dies usque, in Crõ. Animarum ubicunque, &c. in eodem statu quo nunc, &c. Ad quem diem venit tam praedict. Adam, qui sequitur pro domino rege, quam praedict. Episcopus in propria persona sua. Et datus est eis dies coram domino rege in Octab. Sancti Hilarii ubicunque, &c. salvis rationibus suis, &c. Ad quem diem praedict. Episcopus venit, & datus est ei dies ulterius coram domino rege in Octab. Pur. beatae Mariae ubicunque, &c. Ad quem diem venit tam praedictus Episcopus, quam Iohannes de Lincoln’ qui sequitur pro domino rege, & datus est eis dies ulterius coram domino rege à die Paschae in quinque septimanas ubicunque, &c. Salvis rationibus, &c. Ad quem diem venit tam praed. Episcopus in propria persona sua, quàm praedict. Iohannes de Lincoln, qui sequitur pro dicto domino rege, &c. Et datus est eis dies ulterius a die Sancti Michaelis in 15 dies ubicunq; &c. salvis sibi rationibus suis hinc in dicend’ &c.
| And this is all that is in the Record, whereby it appeareth that the plea of the Bishop to the Jurisdiction of the Court after divers dayes given did stand, and was never over ruled agreeably to the said resolutions in former times, that Judges were not to determine matters concerning the Parliament, as is aforesaid. Touching the report of the said case, thus far forth it agreeth, that this contempt cannot be punished in any other Court then in the Kings Bench: so as the question is only for that Court. It appeareth that the reporter never saw the said Record, only took it by the care of that which was spoken in Court (a dangerous kind of reporting, and subject to many mistrakings, for seldome or never the right case is put) as in this case it fell out. For first, where the Record saith, that the Parliament was holden at Sarum; the report is of a Parliament holden at Salop. 2. The Report saith, that John B. of Winchester was arraigned, which implieth that he was indicted, &c. where he was sued by originall Writ. 3. The Inhibition made by the King alledged in the Record, is not in the Report. 4. Concerning the sudden opinion of Scrope in this Report: By his opinion the Parliament it selfe could not have punished this contempt; for he saith, Ceux’q sont Judges de Parliament, sont judges de lour Piers, mes le Roy nad my pier in son terre demesn, pur q̃ il ne poet p eux estre judge, donques ailors cue cy ne poet estre judge, whereas without question the Parliament might have punished this contempt: and concludeth with a rule at the Common law, that the King may sue in what Court it pleaseth him. But matters of Parliament (as hath been often said) are not to be ruled by the Common law: and it seemeth that the rest of the Judges were against Scrope, for the plea was never over-ruled, as by the Record it appeareth.
Vide per Indictamenta Termino Paschae 1 & 2 Ph. & Mar. coram Rege Rot. 48. Informations preferred by the Attorney Generall against 39 of the House of Commons for departing without license contrary to the Kings Inhibition in the beginning of the Parliament; whereof 6 being timorous Burgesses ad redimendam vexationem submitted themselves to their Fines, but whether they paid any, or very small, we have not yet found. And Edmond Plowden the learned Lawyer pleaded, that he remained continually from the beginning to the end of the Parliament, and took a Travers full of pregnancy: and after his plea was sine die per demise le Roign.
If offences done in Parliament might have been punished elsewhere, it shall be intended that at some time it would have been put in use. Vid. the first part of the Institutes. Sect. 108.
Now the said Informations Anno 1 & 2 Ph. & Mar. against 39 of the House of Commons follow in these words.
Pasch.1&2Ph.&Mar. Regis & Reginae. Midd. ss. Memorand’ quod Edwardus Griffyn ar’ Attornat’ domin. regis & reginae generalis, qui pro eisdem domino rege & domina regina sequitur, venit hic in Cur’ dictorum dn̄orum regis & reginae coram ipsis rege et regina apud Westm’ die Sabbathi proxim’ post quind’ Pasch. isto eodem Termino, & dat Cur’ hic intelligi & informari. Quòd cum ad parliamentŭ dominorŭ regis & reginae nunc tent’ apud West’ Annis regnorum suorum primo & secundo inhibitum fuit per ipsos dominum regem et dominam reginam in eodem parliamento,Inihibitum suit. quod nullus ad idem parliament’ summonitus, & ibidem interessens, ab eodem parliamento absque speciali licentia dictorŭ dominorŭ regis et reginae, et Cur’ parliament’ praedict’ recederet, seu seipsum aliquo modo absentaret. Quidam tamen Thomas Denton de in com’ Oxon’ ar’ Henricus Cary de in com’ gent’ Richardus Warde de in com’ ar’ Edmund. Plowden | de Tybmershe in com. Berks armiger, Henricus Chiverton de in com. ar. Robertus Browne de in com. Johannes Courke de in com. Johannes Pethebrige de in com. Johannes Melhewes de in com. Johan. Courtney de in com. Radulphus Michel de in com. Thomas Mathew de in com. Richardus Brasey de in com. Thomas Massyede incom. armig’.Petrus Frechwell de in com. miles. Henricus Vernon de Sydbery in com. Derby armig. Willielmus Moore de villa Derb. in com. Derb. gen. Willielmus Banibrigge de in com. Johannes Eveleigh de in com. gen. Nich. Adamps de Dartmouth, alias Clifton Harnys in com. Devon gen. Richardus Phelipps de in com. ar. Anthonius Dylvington de in com. Andreas Hoorde de in com. Christopherus Hoell de in com. Dors. gen. Johannes Mannocke de in com. gen. Thomas Phelipps de in com. Johannes Hamonddeincom. Johannes Phelipps de in com. Willielmus Randall junior, de incom. Johannes Moyne de in com. Hugo Smyth de in com. gen. Rogerus Gerrard de in com. gen. Radulphus Scroope de in com. gen. Thomas Moore de Hambled. in com. Buck. gen. Willielmus Reade de in com. ar. Henricus Mannock de in com. ar. Joh. Maynard de Villa Sancti Albani, in com. Hertf. ar Nich. Debden de in com. gen. & Philippus Tirwhyt de in com. ar’ qui summoniti fuerunt ad dictum Parliamentum, & in eodem Parliamento comparuerunt, ac ibidem interfuerunt mandat’ et inhibitionem dominorum regis et reginae supradict’ parvi pendentes,Mandatum & Inhibitionem. ac statum reipublicae hujus regni Angliae minime curantes aut ponderantes postea scil. 12 die Januarii Annis regnorú dictorú dominorú regis et reginae nunc primo et secundo supradictis, et durante parliamento praedicto ab eodem parliamento sine licentia dictorum dominorum regis et reginae et cur’ suae praedict’ contemptuose recesserunt in ipsorumdominorum regis et reginae ac mandat’ et inhibitionis suorum praedict’ ok curiaeque, praedict. contempt’ manifestum, ac in magnum reipublicae statum hujus regni Angliae detriment’, nec non in perniciosum exemplum omnium aliorum, &c. Unde idem Attornatus dominorum regis et reginae petit advisamentum cur’ in praemis. et debit’ legis process. vers. eosdem Thomam Denton, Henricum Cary, Richardum Warde, Edm. Plowden, Henricum Chiverton, Robertum Browne, Joh. Courk, Joh. Pethy-bridge, Joh. Melhewes, Joh. Courtney, Radulph. Michell, Thomam Mathewe, Richardum Brasey, Thomam Massye, Petrum Frechwell, Henricum Vernon, Will. Moore, Will. Banibrigge, Joh. Eveleigh, Nich. Adamps, Richardum Phelipps, Anthonium Dilvington, Andream Hoorde, Christopherum Hoell, Johannem | Mannock, Thomans Phelipps, Johan. Hamond, Joh. Phelipps, Willelman Randall, Joh. Moyne, Hugonem Smith, Rogerum Gerrard, Radulphum Scroope, Tho. Moore, Will. Read, Henricum Mannock, Johan. Maynard, Nicholaum Debden, & Phil. Tyrwhyt fieri ad respondend. domino regi, & dominae reginae de contempt’ praedict. &c.
Et modo scil. die Veneris prox’ post Crast’ animarum isto eodem Termino coram domin. rege et dńa regina apud West’ ven’ praedict’ Edm. Plowden per Andream Tusser Attornatū suum: & habit’ audit’ Informationis praedictae dic’, quod ipse non intendit quod dominus rex & domina regina nunc ipsum Edmun’ pro premissis vel aliquo premissorú impetere seu occasionare velint aut debent: Quia dicit quod ipse ad dict’ Parliament’ in informatione praedict’ specificat’ interfuit & praesens fuit, ac in eodem Parliamento continue remansit, viz. à principio ipsius Parliamenti usque ad finem ejusdem. Absque hoc quod ipse idem Edmund. Plowden dicto 12 die Januarii, An. primo & secundo supradict durant’ Parliament’ praedict’ ab eodé Parliament’ sine licentia dictorum dominorum regis & reginae, & cur’ suae praedict’ contemptuose recessit in ipsorum dominorum regis & regine ac mandat’ & inhibitionis suorú praedict’ curiaque praed’ contempt’ manifest’, ac in magnum reipublicae stat’ hujus regni Angliae detriment’, nec non in perniciosum exemplum omnium aliorú modo & forma prout per informac’ praedict’ vers. cum supponitur.Nota, the pregnancy of this travers. Sine die per demise le Royne. Et hoc paratus est verificare prout cur. &c. unde pet’ judicium: & quod ipse de praemiss. per cur’ hic dimittatur, &c.
Midd. Ve. fac’ Thomam Constable de Grimbsbye in com. Lincoln. Ar. Hen. Leigh, de in com. Francis. Farnham de Querne in com. Leic. ar. Li. lo. Mic. 2 & 3 Ph Regis & Mar. Reginae.Joh. Holcroft Sen. de in com. milit. Will. Bromley de in com. ar. Tho. Somerset de in com. ar. Georg. Ferrers de Markyat’ in com. Hertf. gen Nich. Powtrell de Exincton in com. Nott’ ar. F. Hill. 3 & 4 Ph. & Mar. Tho. Moyle de in com. Kanc’ milit. Tho Waters de in com. ar. Will. Tylcock de civit’ Oxon’ gen Li. lo. Hil. 2 & 3 Ph. & Mar. Tho. Balkden de Wechyngleigh in com. Sur. milit. Li. lo. Mic, 2 & 3 Ph. et Mar. Math. Cradock de villa Staff. gen. Li. lo. Hil. 2 & 3 Ph. & Mar. Georgium Lye de villa Salop. gen. Cess. process. per mandat’ Attornat’ dominorum regis & reginae, quia ulterius prosequi non vult vers. ipsum Geo., Lye. Joh. Hoord de Bridgenorth in com. Salop. gen. F. Mic. 5 & 6 Ph. & Mar. Joh. Alsop de villa de Ludlowe in com. Salop. gen. Wil. Laurence de Civ. Winton. gen. Li. lo. Mich. 2 & 3 Ph. & Mar. Robert. Hudson de Civ. Winton. gen. Li. lo. ut antea. Edm. Rowse de Donwich in com’ Suff. mil. Rob. Coppinge de Donwich in com’ Suff. ar. Joh. Harman de Hospicio dom. regis & dom. reginae gen. Will. Crowch de Wellowe in com’ Somers. ar. Tho. Lewes de villa de Wels in | com’ Somers. gen. Li. lo. Hil. 2 & 3 Ph. & Mar., Wil. Godwyn de Wels praed’ in com’ Somers. gen. F. Mich. 3 & 4 Ph. & Mar. Joh. Ashburnham de Ashburnham in com’ Suss. ar. Li. lo. Mic. 2 & 3 Ph. & Mar. Walt. Reyncum de Civ’ Cicest’ in com’ Suss. gen. Li. lo. Tr. 2 & 3 Ph. & Mar. Wil. Moodyere de Slindon in com’ Suss. gen. F.Tr.4&5Ph.& Mar. Joh. Roberts de in com’ Suss. gen. utlegat. &c. Wil. Pellet de Steininge in com’ Suss. gen. F. Pasch. 2 & 3 Ph. & Mar. Rich. Bowyer de Arundell in com’ Suss. gen. Li. lo. Mic. 3 & 4 P. & M. Will. Danby de in com. Westmerl. gen. Rob. Griffyth de Civ’ Novae Sarum in com Wilts, Draper. Li. lo. ut supra. Joh. Hooper de Civ. Novae Sarú in com’ Wilts, gen, Li. lo. Mic. 2. & 3 Ph. & Mar. Wil. Clark de in com. Grif. Curtys de Bradstock in com’ Wilts gen. Li. lo. ut supra, &c. Tho. Hil. de Denyses in com. Wilts gen. F. Hil. 2 & 3 Ph. & Mar. Edw. Umpton de London gen. Li. lo. Mic. 2 & 3 Ph. & Mar. Tho. Parker de in com. Joh. Reade de London gen. F. Hil. 2 & 3 Ph. & Mar. Arth. Allen de civ’ Bristol Merch. Egid. Payne de civ’ Bristol. gen. Wil. Hampshire de London gen. Li. lo. Mic. 3 & 4 Ph. & Mar. & Pet. Tayler de Marlborow in com’ Wilts, Taylor. Li. lo. Mic. 3 & 4 Ph. & Mar. Resp. Regi de quibusdam transgress. & contempt. unde impetit’ sunt.
Mid. Ve. fac’ cr’ Trin. Edw. Braxden de civ’ Wigorn. gen. Georg. Newport de Droitwich in com’ Wigorn. gen. Wil. Wigstone de Wolstone in com’ War. mil. Li. lo. Mic. 2 & 3 Ph. & Mar.Radulph. Browne de Woodlowes in com’ War. gen. Li. lo. Mic. 3 et 4. Ph. et Mar. Johan. Harforde de civ’ Covent. gen. Cess. process. &c. Nich. Fryshe de in com. Rich. Rayleton de in com. Marc. Wyrley de civ. Lichfield. gen. Walt. Iobson de villa de Kingston super Hull. Jac. Brenne de in com. gen. Joh. Payton de in com. Kanc. ar. Joh. Cheney de in com. Kanc. armigerum. Willielmum Oxenden de in com. Kanc. Armigerum. Tho. Keys de “in com. Kanc. gen. wil. Hannington de” in com. Kanc. Joh. Tyssars de in com. Nich. Crypse de in com. Kanc. ar. Edw. Herbert de Stawley in com. Salop ar. F. Hil. 4 et 5 praed. Ph. et Mar. &c. Rich. Lloyde de in com. Kanc. gen. Joh. de Knylle de in com. ar. Hen. Jones de in com. mil. Meredith Gaines de in com. gen. & Rich. Bulkeley de in com. mil. Resp. regi de quibusdú transgr’ & contempt. unde impetit’ sunt. Et postea, scil. Termino sanct. Trin. Annis 4&5 Ph. et Mar. pro eo quod sufficienter hic in cur’ testatū est quod praedict. Joh. Harford habuit licentiam recedere à Parliamento &c. Ideo Edw. Griffyn ar. Attornat.Non prof. vers. Harford tantum.dominorū regis & reginae generalis qui pro ipsis rege & regina in hac parte sequitur, dicit quod ipse ulterius in hac parte vers. praefatum Joh. Harford prosequi non vult. Ideo cess. hic process. vers. eum omnino, &c.Sine die per demise le Royne.
| And to deal clearly, this is all that we can find concerning this matter. Thus you may observe, that the poor Commons, Members of the Parliament, in diebus illis, had no great joy to continue in Parliament, but departed. But now to proceed.
Of Writs of Error in Parliament.
The House of Lords is a distinct Court for many purposes.If a Judgement be given in the Kings Bench either upon a writ of Error, or otherwise, the party grieved may upon a petition of Right made to the King in English; or in French (which is not ex debito Justitiae, but for decency, for that the former judgement was given Coram Rege) and his answer thereunto, fiat Justitia, have a writ of Error directed to the Chief Justice of the Kings Bench for removing of the Record in praesens Parliamentum and thereupon the Roll it self, and a transcript in parchment is to be brought by the Chief Justice of the Kings Bench into the Lords House in Parliament: and after the transcript is examined by the Court with the Record, the Chief Justice carrieth back the Record it self into the Kings Bench, and then the Plaintiffe is to assign the errors, and thereupon to have a Scire fac’ against the adverse party, returnable either in that Parliament, or the next; and the proceeding thereupon shall be super tenorem recordi, & non super recordum. All this, and many more excellent matters of learning are contained in the Records following; whereof a light touch is hereafter given, the Records at large being too long here to be rehearsed. And the proceeding upon the writ of Error is only before the Lords in the Upper House, secundum legem & consuetudinem Parliamenti.
Queritur Guilielmus de Valencia contra Concilium regis, i. Justic’ Coram Rege, pro injusto judicio tangen’ allocationem Dionisiae filiae Guilielmi de monte Caniso ut haered’: sed dominus Rex ratum habet eorum factum, & judicium redditum est contra Guilielmum de Valencia. ,
If a Nobleman had been erroneously attainted of Treason, &c, he might have had his writ of Error in Parliament, notwithstanding the statute of 33 Hen. 8, ca. 20. for that must be intended of lawfull records of Attainder: but if the Attainder be established by Authority of Parliament, then he must exhibite his petition in Parliament to be restored of grace. But now by the statute of 29 Eliz. ca. 2. it is obtained, that no record of Attainder of High Treason that then was, for the which the party attainted had been executed for the same treason should be reversed for error: but this extendeth only to Attainders of High Treason, and not to any Attainder of High treason after that Act, nor to any High treason before, for the which the party was not executed.
The House of the Lords is a distinct Court for many purposes.The Prior and Covent of Montague by their petition declare, that Richard Seimour had obtained an erroneous judgement against the said Prior in the Kings Bench, upon a judgement given in the Common place upon a fine for the Mannor of Titenhull in the County of Somerset, &c. And the principall error was for denying of aid of the King where it was grantable, and that hanging a writ of Right, the said Richard sued a Scire fac. And commandment was given to the Chancelor of England, that he should make a writ of possession and seison to be had, and other processe upon that judgment to be made: In this Record you shall observe excellent pleading.
Error in Parliament upon a judgment in an Appeal of death upon an acquitall of the Defendant, and inquiry of the Abettors, &c.
And (that we may observe it once for all) when one sueth in Parliament to reverse a judgement in the Kings Bench, he sheweth in his bill which he exhibiteth to the Parliament some error or errors, whereupon he prayeth a Scire facias.
The Bishop of Norwich sheweth that an erroneous judgment was given against him in the Common place for the Archdeaconry of Norwich belonging to his presentation and prayed that those errors might be heard, and redressed | there: whereunto answer was made that errors, by the law, in the Common place are to be corrected in the Kings Bench, and of the Kings Bench in the Parliament and not otherwise.
1. Ric. 2. nu. 28, 29, 2 Ric. 2. nu. 31. A writ of Error in Parliament between William Mountacute Earl of Sarum, and Roger of Mortimer Earl of March of a judgment in the Kings Bench.
a The Dean and Chapter of Lichfield recovered in the Common place against the Prior of Newport Pannel: the Prior by writ of Error reverseth the judgment in the Kings Bench: the Dean and Chapter by writ of Error in Parliament reverseth the judgment in the Kings Bench, and affirmeth the judgment in the Common place, and a commandment given to the Chancelor, that the judgment in the Common place be executed by processe by him to be made.
b John Sheppy complains of a judgement in the Kings Bench in a writ of Error.
c Error in Parliament between William Mountacute Earl of Salisbury, and Roger de Mortimer Earl of March, for the Castle, Town, and honour of Denbeigh, &c. upon a judgment given in the Kings Bench, and had a Scire fac’ returnable the next Parliament.
d William Seward alias Cheddre complaineth, that where he by that name was presented and inducted to the Parsonage of Wotton Under Egge in the County of Glouc’, and thereof continued the possession by the space of four years, untill the King by untrue suggestion presented Sir John Dawtry in the Parsonage of Underhegge in that County, where there was no such parsonage calied Underhegge, as the said William pleaded in a Quare Impedit brought by the King in the Kings Bench; upon which writ the King recovered by the Default the Parsonage of Underhegge, and not Under Egge, whereby upon a writ sent to the Bishop of Worcester, the said William was put from his Parsonage of Under Egge; for which mistaking and error, the judgment for the said John in full Parliament was reversed, and a writ awarded to the said Bishop for the restitution of the said William.
The Record and judgment given in the Kings Bench for the King against Edmond Basset for certain lands, &c. was for divers errors reversed in Parliament, and restitution of the premisses with the mean profits restored to the said Edmond.
In error in Parliament between Roger Deyncourt, and Ralph de Adderlye for a judgement given in the Kings Bench for the Mannor of Anslye in Com’ Warr’. Sir William Gascoign Chief Justice delivered a copy of the Record and processe, word for word, under his hand, &c. to the Clerk of the Parliament, &c.
In error in Parliament between Richard Quatermayns and William Hore, &c, upon an erroneous judgment given in the Kings Bench in an action of trespasse, and the Plaintif entred his Atturny of Record to proceed therein.
John Beauchamp Lord Abergaveny complained in Parliament upon an erroneous judgment given upon a verdict in the Kings Bench in a Scire fac’ upon a recognisance in the Chancery for keeping the peace. In the Recordwhereof are excellent points of learning, as well touching the recognisance, as the processe, and issue.
Error in Parliament, Pasch. 31 Hen. 6. upon a judgment given in an Assize in the Kings Bench, & intratur super marginem, Rot. mittitur in Parliamentum per Johannem Fortescue Termino Paschae anno 31 Hen. 6.
And to omit many others, to descend to some of latter times, Richard Whalley recovered in Assize by veredict against divers tenants, who brought a writ of Error in the Kings Bench, where the judgment in the Assize was affirmed, the tenant complained in Parliament for error in the Kings Bench.
Error in Parliament upon complaint of Sir Christopher Heydon Knight of a judgment in a writ of Error in the Kings bench, between the said Sir Christopher Plaintif, and Roger Godsalve and others Defendants, upon a judg-|-ment given for the said Roger, &c. against the said Sir Christopher in an Assize before Justices of Assize, wherein the judgment in the Assise was affirmed in the Kings bench, whereof the complaint was made, sed non praevaluit.
Now order doth require to treat of other matters of Judicature in the Lords house, and of matters of Judicature in the house of Commons. And it is to be known; that the Lords in their House have power of Judicature, and the Commons in their House have power of Judicature, and both Houses together have power of Judicature: but the handling hereof according to the worth and weight of the matter would require a whole Treatise of it self; and to say the truth, it is best understood by reading the Judgments and Records of Parliament at large, and the Journals of the House of the Lords, and the book of the Clerk of the House of Commons, which is a Record, as it is affirmed by Act of Parliament in anno 6 Hen. 8. ca.16.
See Rot. Claus. I Ric. 2. m.5. 8. 38, 39. A tresage Councell le Roy, les Seigniors & Commons, &c. Rot. Parl. 1 Hen. 4.nu.79, it is no Act of Parliament, but an Ordinance, and therefore bindeth not in succession. Rot. Par.2 Hen. 5. nu.13. Error assigned that the Lords gave Judgement without petition or assent of the Commons. Rot. Par. 28 Hen. 6. nu.19. & many others in the reign of King Hen. 6. King Edw. 4.
And of latter times, see divers notable judgements, at the prosecution of the Commons, by the Lords at the Parliaments holden 18 and 21 Jac. Regis. against Sir Giles Mompesson, Sir John Michel, Viscount S. Albone Lord Chancelor of England, the Earl of M. Lord Treasurer of England, whereby the due proceeding of Judicature in such cases doth appear.
Thomas Long, gave the Mayor of Westbury four pound to be elected Burgesse, who thereupon was elected. This matter was examined and adjudged in the House of Commons,Secundum legem & consuetudinem Parliamenti, and the Maior fined and imprisoned, and Long removed: for this corrupt dealing was to poyson the very fountain it self.
Arthur Hall a Member of the House of Commons for publishing and discovering the conferences of the House, and writing a book to the dishonor of the House, was upon due examination, secundum legem & consuetudinem Parliamenti, adjudged by the House of Commons to be committed to the Tower for six months, fined at five hundred marks, and expelled the House.
Muncton stroke William Johnson a Burgesse of B, returned, into the Chancery of Record, for which upon due examination in the House of Commons, it was resolved that secundum legem & consuetudinem Parliamenti, every man must take notice of all the Members of the House returned of Record at his | perill: but otherwise it is of the servant of any of the Members of the House; for there he that striketh, &c. must have notice. And the House adjudged Muncton to the Tower, &c.
If any Lord of Parliament, Spirituall or Temporall, have committed any oppression, bribery, extortion, or the like of the House of Commons, being the generall inquisitors of the Realm (comming out of all the parts thereof) may examine the same, and if they find by the vote of the House, the charge to be true, then they transmit the same to the Lords with the witnesses and proofs.
Priviledge of Parliament.
And now after Judicature, let us speak somewhat of priviledge of Parliament: Experience hath made the priviledges of Parliaments well known to Parliament men, yet will we speak somewhat thereof.
Magister militiae Templi petit quòd distringat (catalla unius de concilio) tempore Parliamenti pro redditu unius domus in London: Rex respondet, non videtur honestum, quod illi de concilio suo distringantur tempore Parliamenti, sed alio tempore, &c. , Whereby it appeareth that a Member of the Parliament that have priviledge of Parliament, not only for his servants, as is aforesaid, but for his horses, &c. or other goods distreinable.
Querela Comitis Cornubiae, versus Bogonem de Clare & Priorem Sanctae Trinitatis London, quòd ipsi tempore Parliamenti ipsum comitem in medio aulae Westm’ ad procurationem ipsius Bogonis citaverunt, quòd compareret coram Archiepiscopo Cantuar’ &c. Ipse prior venit & Bogo similiter, & ponunt se in gratiam, misericordiam, & voluntatem Regis de alto & basso, ob quod mandantur turri London: Postea venit dictus Bogo & finem fecit domino regi pro praedicta transgressione per duas mille marcas, &c. & quoad praedict’ Comitem respondeat Comiti 1000. li. pro transgressione sibi fact’, &c. & praedictus Prior mittitur ibidem ad faciend’ secundũ quod thesaurius ei dicet ex parte dñi Regis. ,
And yet the serving of the said citation did not arrest, or restrain his body and the same priviledge holdeth in case of Sub poena or other processe out of any Court of equity.
Rex mandavit Justiciariis suis ad Assisas, Jurat’, &c. capiend’ assignat’ quòd supersedeant captioni eorundem ubi Comites, Barones & alii summoniti ad Parliamentum Regis sunt partes, quamdiu dictum Parliam, duraverit. ,
De non procedendo ad capiend’ Assisas versus illos, qui ad Parliamentum Regis apud Eborum venerunt. ,
Rex omnibus balivis & fidelibus suis ad quos, &c. Salutem. Sciatis,quòd cum curiae nostrae in quibusnegotia regni nostri dedecantur ubiq; adeo liberae sint & exemptae, & à tempore quo non extat memoria liberae & exemptae fuerunt, quod nec aliqua forum ecclesiasticum concernentia in eisdem curiis nostris fieri seu exequi, nec aliqui easdem curias nostras ad aliqua forum ecclesiasticum contingentia faciendum vel exequendum ingredi debeant, vel consueverunt aliquibus temporibus retroactis, ac Magister Henricus de Harewedon clericus, Edmundus de Lukenore & Johannes de Wedlingburgh de eo quòd ipsi nuper in Cancellaria nostra in praesentia venerabilis Patris I. Cantuariensis Archiepiscopi Cancellarii nostri quasdam citationes sive monitiones dilecto clerico nostro Johanni de Thoresbynec non provocationes, appellationes & instrumenta publica super citationibus seu monitionibus praedictis in nostri contemptum & Coronae nostrae ac Regiae dignitatis nostrae praejudicium, & contra libertatem & exemptionem praedict’ fecerunt per inquisitionem in quam se inde in curia nostra coram dilecto Cancellario nostro & aliis de concilio nostro posuerunt convicti fuissent & ea occasione prisonae nostrae mancipati in eadem ad voluntatem nostram moraturi. Nos de gratia nostra speciali ad requisitionem Philippae Reginae Angliae consortis nostrae charissimae perdonavimus eisdem Henrico, Edmundo & Johanni imprisonamentum praedictum; amentum praedictum; Ita tamen quod nobissatisfaciant de redemptione sua occasione praemissorum, & quod super citationibus, monitionibus, provocationi-|-bus, appellationibus seu instrumentis praedictis in dicta cancellaria, nostra sic factis processum aliquem non faciant, nec quicquam quod in nostri vel juris coronae nostrae praejudicium cedere possit attemptent vel attemptare faciant de caetero quovis modo. In Cujus, &c. Teste Rege apud Turrim London 15 die Aprilis, ex originali de Anno 10 E.3. Rot.27. Not.
Priviledge of Parliament in informations for the King, generally the priviledge of Parliament do hold, unlesse it be in three cases, viz. Treason, Felony, and the the peace.
Of Statutes, or Acts of Parliament.
There is no Act of Parliament but must have the consent of the Lords, the Commons, and the Royall assent of the King, and as it appeareth by a Records and our b Books whatsoever passeth in Parliament by this threefold consent, hath the force of an Act of Parliament.
The difference between and Act of Parliament, and an Ordinance in Parliament, is, for that the c Ordinance wanteth the threefhold consent, and is ordained by one or two of them.
d I have read of a restitution in blood, and of lands of one William de Lasenby by the King, by the assent of the Lords Spirituall, and Commons, (omitting the Lords Temporall) this we hold is an Ordinance, and no Act of Parliament. And when the Clergy is omitted and the Act made by the King, the Lords Temporall, and Commons. See the Rols of Parliament and authorities following, viz. Rot. Parl. Pasch. e 15 E.2. the case of the Spencers.3. Ric. 2. cap.3. in print. Our Soveraigne Lord by the common consent of all the Lords Temporall, and at the petition of the Commons, &c. 7 Ric. 2. cap. 12. accord. 11 Ric. 2. nu.9, 10, 11. See Hen.5. c.7 f 21 Ric. 2. nu.9. & 10. 6. Hen. 6. nu.27. 7 Hen. 8. Kelw. 184. the opinion of the Justices agreeable with the said Acts of Parliament. And note the mutability in this particular case of the Spencers, of this High Court of Parliament. The judgment by Parliament in 15 Edw. 2. against the Spencers, was in the same year by Act of Parliament repealed: that repeale was repealed by authority of Parliament in 1 Edw. 3. that repeal of 1 Edw. 3. was repealed by Act of Parliament in 21 Ric. 2. and that of 21 Ric. 2. was repealed by authority of Parliament in 1 Hen. 4. And so the judgment against the Spencers standeth in force.
The division of Acts of Parliament.
Of Acts of Parliament some be introductory of a new law, and some be declaratory of the ancient law, and some be of both kinds by addition of greater penalties or the like. Againe, of Acts of Parliament, some be generall, and some be private and particular. All Acts of Parliament relate to the first day of Parliament, if it be not otherwise provided by the Act.
The severall formes of Acts of Parliament.
In ancient time all Acts of Parliament were in form of Petitions. And for the severall forms of Acts of Parliament, see the Princes case in the 8 Book of Reports. Now for the reading, committing, amending, ingrossing, voting, and passing of Bils in either House, and touching conferences with the Lords, and for the priviledge of any Member of either Houses, and of their servants more then hath been said, they be so ordinary and well known, and in such continual practice, as it were but expence of time to treat any more of them. And for that many times the Rols of the Parliament have not been truly ingrossed, at | the request of the Commons certain of them are to be appointed, who should be at the ingrossing of the Rols of Parliament.
In former times Acts of Parliament were proclaimed by the Sheriffes.
When I read the case of Premunire in 39 Edw. 3. upon the statute of 27 Edw. 3. at provisors against the Bishop of Chichester, and observing that Sergeant Cavendish of councel with the Bishop objected two things: first, that the Act whereupon the Writ was grounded, was no statute. Secondly, that if it were a statute, it was never published in the County: whom Sir Robert Thorpe Chief Justice answered. Although proclamation be not made in the County, every one is bound to take notice of that which is done in Parliament: for as soon as the Parliament hath concluded any things, the law intends, that every person hath notice thereof, for the Parliament represents the Body of the whole Realm: and therefore it is not requisite that any Proclamation be made, seeing the Statute took effect before. This gave me to understand, that albeit it was not required by law that statutes should be published in the County; yet seeing in those dayes and long after, the use of printing came not into this Realm: the use was (as it appeareth by Cavendishes speech) that they should be published in the County, to the end that the Subjects might have expresse notice thereof, and not to be overtaken by an intendment in law, which gave me occasion to search and inquire how this usage was, and how long it continued. And in the end I found, that at every Parliament the Acts that passed were transcribed into Parchment, and by the Kings Writ directed of the Sheriffe of every County of England, and commandement given to him, that all the said statutes in all places through his whole Bayliwick, as well within Franchise as without, where he should finde most fit, that he not only should proclaime them, but to see that they should be firmely observed and kept. And the usage was to proclaim them at his County Court, &c. and there to keep the transcript of the Acts, that who so would, might reade or take copies thereof. And this Writ was sometime in Latine and sometime in French, as in those dayes the statutes were enacted in Latin or in French. But an example of the one, and of the other will more illustrate this matter.
Edwardus Dei grat’ Rex Angliae & Franciae,& Dominus Hiberniae Vic’ Norff. Salut. Quaedam statuta p. nos, Praelatos, Comites, Barones, & alios magnates ad Parliamentum nostrum tentum apud Eborum in Crō. Ascensionis ultim’ praeterit’ ordinavimus & stabilivimus, prout sequitur, and recite the severall statutes verbatim. And then the Writ concludeth. Et ideo tibi praecipimus, quod statuta illa & omnes articulos in eisdem contentos in singulis locis in baliva tua, tam infra libertates, quam extra, ubi expedire videris, publice proclamari & firmiter teneri & observari facias. Teste, &c.Nota that the Sheriffe that hath Custodiam comitatus, should see the statutes within his County to be kept. At the Parliament An. I Ric. 2.
Richard p. la grace de Dieu Roy Dengliterre & de France, & Seigniour d’Ireland a nostre Viscount de Norff. Salut. Sachés que al honeur de Dieu, & reverence de Saint Esglise & pur nurrer peace, unitie, & concord in touts parts deins nostre realme, le quel nolus desirons mult entirement, del assent des Prelats, Dukes, Counts & Barons de mesme nostre realme, al instance & speciall request des Commons de nostre Realme assembles a nostre Parliament tenus a Westm, a la quinzim de S. Michaell an de nostre reigne primier avons fait ordeiner & stablier certaine statuts en amendment & relievement de mesme nostre Realme, & en la forme que sensuist. Primerment est assentus & establie, que saint Eglise eit & enjoy se touts les droitures, &c. rehearsing all the statutes that passed at that Parliament. And the Writ concludeth thus. Et pur ceo vous mandons que touts les statuts faces crier & publier, & firmament tener p. my vostre Baillie solonq; la forme & tenor de icel, & ceo ne lesses en ascun manner. Donc p testmoignants de nostre grand seale al Westm. le primier jour de Feverer lan de nostre reigne primer. And the like Writs continued untill the beginning of the reign of Hen. 7. long time after printing within the reign of Hen. 6. (as hath bin said) came unto us.
| Prorogation, Adjournment, Continuance, and what maketh a Session of Parliament.
The passing of any Bill or Bils by giving the Royall assent thereunto, or the giving and judgement in Parliament doth not make a Session, but the Session doth continue untill that Session be prorogued or dissolved: and this is evident by many presidents in Parliament ancient and late.
The Parliament of 14 Edw. 3. began at Westminster the Wednesday after Mid Lent: the first monday of the Parliament, the ninth part of their Grain, Wooll, and Lambe, &c. was granted to the King, on condition that the King would grant their petitions in a Schedule beginning. These be the petitions which by the Commons and Lords was drawne into a forme of a Statute, and passed both Houses, and the Royall assent thereunto, andthe same exemplified under the Great Seal. After this the Parliament continued, and divers Acts made, and petitions granted, and in the end that Parliament was dissolved.
In the Parliament holden Anno 3 Ric. 2. it is declared by Act of Parliament that the killing of John Imperiall Ambassadour of Jenoa, was High Treason, crimen laesae majestatis, and yet the Parliament continued long after, and divers Act of Parliament afterwards made, and petitions granted: and in the end the Parliament dissolved.
In the Parliament begun the first day of March, Anno 7 Hen.4. on Saturday the 8 day of May it was enacted by the King, the Lords Spirituall and Temporall, and the Commons, that certain strangers by name, who seemed to be Officers to the Queen, should by a day depart the Realm, and proclamation thereof in kinde made by Writ, by authority of Parliament, which Parliament continued, and divers other Acts of Parliament made, andpetitions answered: and on the 22 day of December 8 Hen.4. dissolved.
The Parliament begun 7 November, and on the first day of the Parliament it was resolved by all the Judges, that those that were attainted of treason, and returned Knights, Citizens, or Burgesses of Parliament, that the attainders here to be reversed by authority of Parliament before they could sit in the House of Commons: and that after the attainders reversed, both the Lords, and those of the House of Commons might take their places, for such as were attainted could not be lawfull Judges, so long as their attainders stood in force: and thereupon the attainders were reversed by Act of Parliament, and then they took their places in Parliament, and the Parliament continued, and divers Acts made.
The Bill of Queen Katherine Howards attainder passed both Houses about the beginning of the Parliament, whereunto the King sitting the Parliament by his Letters Patents gave his Royall assent, and yet the Parliament continued untill the first day of Aprill, and divers Acts of Parliament passed after the said Royall assent given. Divers more might be produced, but these shall suffice. So as albeit Bils passe both Houses, and the Royall assent given thereunto, there is no Session untill a prorogation or a dissolution.
The diversity between a prorogation and an adjournment, or continuance of the Parliament, is, that by the prorogation in open Court there is a Session, and then such Bils as passed in either House, or by both Houses, and had no Royall assent to them, must at the next assembly begin again, &c. for every severall Session of Parliament is in law a severall Parliament: but if it be but adjourned or continued, then is there no Session: and consequently, all things continue still in the same state they were in before the adjournment or continuance.
And the title of divers Acts of Parliament be, At the Session holden by prorogation, or by adjournment and prorogation, but never by continuance or adjournment tantum. And the usuall form of pleading is; ad Sessionem tentam, &c. per prorogationem.
| We have been the longer and more curious for the clearing of this point for two reasons, 1. For that the adjournment or continuance (as before it appeareth) is much more beneficiall for the Common-wealth for expediting of causes, then a prorogation. 2. In respect of a clause in the Act of Subsidie in the Parliament holden in Anno 18 Jac. Regis, which is but declaratory of the former law, as by that which hath been said appeareth.
When a Parliament is called and both sit, and is dissolved without any Act of Parliament passed, or judgement given, it is no Session of Parliament, but a Convention.
In the 18 year of Ric.2. at a Parliament holden before the Duke of York (the King being in his passage to Ireland) the Petitions of the Commons were answered: and a Judgement given in the Kings Bench for the Prior of Newport; pannell, against the Dean and Chapter of Lichfield was reversed, but no Act of Parliament passed, and therefore this Parliament is omitted in the print; but it is no question but it was a Session of Parliament, for otherwise the Judgment should not be of force: and many times Judgements given in Parliament have been executed, the Parliament continuing before any Bill passed.
The House of Commons is a distinct Court.
Nota, the House of Commons is to many purposes a distinct Court, and therefore is not prorogued, or adjourned by the prorogation or adjournment of the Lords House: but the Speaker upon signification of the Kings pleasure by the assent of the House of Commons, both say: This Court doth prorogue or adjourne it self; and then it is prorogued or adjourned, and not before. But when it is dissolved, the House of Commons are sent for up to the higher House, and there the Lord Keeper by the Kings commandement dissolveth the Parliament; and then it is dissolved, and not before. And the King at the time of the dissolution ought to be there in person, or by representation: for as it cannot begin without the presence of the King either in person or by representation (as before it hath been said) so it cannot end or be dissolved without his presence either in person or by representation.Nihil enim tam conveniens est naturali aequitati, unumquodq; dissolvi eo ligamine quo ligatum est.
It is declared by Act of Parliament, that the Kings Letters Patents under his Great Seale, and signed with his hand, and declared and notified in his absence to the Lords Spritiuall and Temporall and Commons assembled in the Higher House of Parliament, is, and ever was of as good strength and force, as if the Kings person had been there personally present, and had assented openly and publickly to the same.
Of Subsidies and Aides granted by Parliament.
Subsidie is derived of the Verb Subsidiari, which signifieth to be ready to help at need, unde subsidium, which signifieth aide and help at need, so properly called, when Souldiers were ready to help the foreward of the battell: and aptly was the word so derived, as well because that which we call now subsidia, Subsidies, were anciently called auxilia, Aides, granted by Act of parliament upon need and necessity: as also, for that originally and principally they were granted for the defence of the Realm, and the safe keeping of the seas, &c. Communia pericula requirunt communia auxilia.
This word [Subsidie] is common, as well to the English, as to the French, Concerning Subsidies hear what a stranger truly writeth. Reges Angliae nihil tale, nisi convocatis primis ordinibus, & assentiente populo, suscipiunt.Quae consuetudo valde mihi laudanda videtur; interveniente enim populi voluntate & assensu crescit robur, & potentia regum, & major est ipsorum authoritas, & feliciores progressus.
Subsidies taken in their generall sense for Parliamentary Aides are divided into perpetuall and temporary: perpetuall into three parts, viz. into Custuma | antiqua, sive magna,custuma nova sive parva,and into custome of Broad cloth. Temporary, whereof there are three kindes, viz. 1. of Tonnage and Poundage of ancient time granted for a year or years incertainly, and of latter times for life. 2. A Subsidie after the rate of 4s. in the pound for lands, and 2 s. 8 d. for goods. And 3 for an Aide called a Fifteenth, And of these in order.
Custuma antiqua sive magna.
Custuma antiqua sive magna was by Act of Parliament granted to King Edward the First his heirs and successors for transportation of three things, viz. Wools, Woolsels, and Leather, viz. for every sack of wool containing thirty six stone, and every stone fourteen pound, half a mark; and for three hundred woolsels half a mark, and for a last of Leather thirteen shillings four pence, to be paid as well by Strangers as by English. Praelati, magnates, & tota communitas concesserunt quandam novam consuetudinem nobis de lanis, pellibus & coriis dimid’ marc’, de 300. pellibus dimid’ marc’, & de lasta coriorum unam marcam. In the statute called confirmationes cartarum Anno 25 Edw.1. there is a saving in these words, Save a nous, & nous heires la custome des leynes, pealx & quires grant’ perle Comminalty du realm. See also the like in the preamble:Salva tamen nobis & haeredibus nostris custuma lanarum, pellium & coriorum per Communitatem dicti regni nobis prim’ concess.
Note it is said in divers Records, per Communitatem Angliae nobis concess,’ because all grants of Subsidies or Aids by Parliament doe begin in the House of Commons, and first granted by them: also because in effect the whole profit which the King reapeth doth come from the Commons.
Custome is derived of the French word custom.Custuma parva & nova. ,
In the 31 year of Edw.1. the Merchant strangers in consideration of certain liberties and priviledges granted to them, and a release to them of all prizes and takings, gave to the King and his heirs, three shillings four pence, ultra antiquam custumam ut prius concess. So as where the Subject paid a Noble, the Stranger paid ten shillings, &c. See the statutes of 1 Hen.7. ca.2. 11 Hen.7. cap.14. 22 Hen.8. cap.8.
Custome of what things, ex antiquo.
And it is to be observed, that of ancient time no Custome was by English or Stranger, but for Wools, Woolfels, and Leather. Hereby it appeareth how necessary the knowledge of ancient Records and of the true originall of every thing is.
In the reign of Edw.3. a great part of the Wools for the which such Custome was granted,Of Wools draped into Cloth no Custome was due. and paid, as is aforesaid, was draped into broad Cloth:whereupon question grew, whether upon the transportation of the Cloth, into which the Wool was draped, Custome should be proportionably paid, having regard to the quantity of the Wool so converted into Cloth: and it was resolved, that no Custome should in that case be paid, because the Wool by the labour and industry of man was changed into another kind of merchandise: wherewith the King held himself satisfied, and so it appeareth in the Kings own Writs and Records enrolled in the Exchequer.
The first Act of Parliament that gave any Subsidy of Cloth was in Anno 21 Edw.3. (not printed) viz. fourteen pence of Lieges and one and twenty pence | of Strangers, for every Cloth of Assise, and two shillings four pence of Lieges, and three shillings six pence of Strangers for every Cloth of Scarlet, &c. Vide inter Original’ de Scaccario, 24 Edw.3. Rot. 13. And the reason of granting the said Subsidies of broad Cloth was, Quia jam magna pars lanae regni nostri in eodem regno pannificitur, de qua Custuma aliqua non est soluta, per quod proficuum quod de Custumis & Subsidiis lanarum, si extra dictum regnum ducerentur, percipere debemus, in multo diminuuntur, &c. And yet if in any case the King might by his Prerogative have set any imposition, he might have set one in that case, for that, as it appeareth by that Record, by making of Cloth the King lost his Customes of Wool: and therefore for further satisfaction of the King for the Custome of Wool; at the Parliament holden in Anno 27 Edw.3. a Subsidy was granted to the King his heirs and successors, ( over the Customes thereof due) viz. of every whole Cloth of Assise not ingrained, four pence, and for the half of such a Cloth, two pence, and of every Cloth ingrained five pence, and of the halfe two pence half penny, and of every Cloth of Scarlet six pence, and of the half three pence; and the Alnegers fee is granted to him by Act of Parliament. viz. for the measuring of every Cloth of Assise of the Seller a halfpenny, and of half a cloth a farthing for his office, and no more, nor shall they take anything for a cloth that is lesse; and that he take nothing of the Alnage of any cloth but only of such cloth as is to be sold. And both in this Act, and in some Acts in the reign of Hen.3. consuetudines & custumae, which are englished, Customes, are taken for the Subsidies that were granted by Parliament, for verily those were ancient and right Customes or Subsidies. And in the statute of 11 Hen.4. Customes and Subsidies are used as Synonymaes.
Butlerage is a Custome due to the King of two shillings of every Tun of Wine brought into this Realm by Strangers: but Englishmen payeth it not.
In libro Rubeo in Scaccario in custodia Rememoratoris Regis, fol. 265. the grant of King John to the Merchants of Aquitain trading for wines thence into England of divers liberties, viz. De libertatibus concessis mercatoribus vinetariis de Ducatu Aquitaniae, reddendo regi & haeredibus suis 2.S.: de quolibet dolio vini ducti per eosdem infra regnum Angliae vel potestate regis.
All Merchant Strangers in consideration of the grant to them by the King of divers liberties and freedoms, concesserunt quod de quolibet dolio vini quod adducent vel adduci facerent infra regnum, &c. solvent nobis & haeredibus nostris nomine Custumae duos solidos, &c. ,
Prisage is a Custome due to the King of the wines brought in by the Merchants of England of every Ship having twenty Tuns or more, two Tuns, viz. one before the Mast, and the other behind, paying twenty shillings for each Tun; and this is called certa prisa, and recta prisa, and regia prisa, as in the Record ensuing appeareth, and hereof Merchant Strangers are discharged, per cartam mercatoriam, 31 Edw.1. Ubi supra.
Memorandum quod rex habet ex antiqua consuetudine de qualibet nave mercatoris vini 6. carcat’ applican’ infra aliquem portum Angliae de viginti doliis duo dolia, & de decem doliis unum de prisa regia pro quodam certo ab antiquo constitut’ solvend’. ,
Hereby it appeareth that Prisage is due by prescription, and that it was a certainty of ancient time ordained to be paid.
It is called Butlerage because the Kings chief Butler doth receive it, and Prisage, because it is a certain taking or purveyance for wine to the Kings use.
| Good Bils or motions in Parliament seldome die.
Bils, motions.It is an observation proved by a great number of presidents, that never any good bill was preferred, or good motion made in Parliament, whereof any memoriall was made in the Journall book, or otherwise, though sometime it succeeded not at the first, yet hath it never died, but at one time or other hath taken effect; which may be a great encouragement to worthy and industrious attempts, as taking some few examples for many, which I have quoted in the margent.
The Subsidy of Tunnage and Poundage.
By the subsequent Records you shall observe 13. things 1. The grant of Poundage only. 2. Of Tunnage and Poundage. 3. Severall rates, sometimes 6.d. 8.d.11.d. for Poundage. 4. Sometimes 2, s. 18. d. 3. s. 5. Hac vice, 1,2,3,4. years, for life. 6. To Merchants, &c. 7. To have intermission and to vary lest the King should claim it as a duty, 8. Expressed upon free gift. 9. Upon condition to keep the Seas, and for commerce. 10. That is over the consideration and cause of the grant. 11. Granted without retrospect. 12. Sometimes double of Strangers. 13. Cloth excepted, that it be not subject to Tunnage and Poundage. 31 Hen.6.The records.
a Of poundage only, and 6. d. inthe pound, for two years upon condition, if,
b 6. d. for Poundage, and 2 s. for Tunnage of wine, hac vice.
c 6. d. of every pound of merchandize, and 2.s. of every tun of wine, upon condition, &c. hac vice.
d Sometime to have intermission, and to vary, lest the King should claim as duties.
e For Tunnage of wine 3.s. and 6.d. for Poundage for one year.
f 3.s. for Tunnage of wine, 12 d. for Poundage, hac vice.
g 6 d. for Poundage, and 18.d. for Tunnage of wine for three years.
h 8. d. for Poundage and 2.s. for Tunnage of wine.
i 2. d. for Poundage, and 3.s. for Tunnage of wine for three years.
k 12. d. for Poundage, and 3.s. for Tunnage of wine for severall times upon condition, sometime for one year. In these and most of the former granted upon condition for due employment l of their own good will, and so entred, and the King to have a certain sum m more expresly.
n 12. d. for Poundage, and 3.s. for Tunnage of wine for four years.
o The like Subsidy is granted to the King for his life upon conditions &c. which was the first grant of Tunnage and Poundage for life, which was a leading grant, as hereafter appeareth.
p The Subsidy of Poundage only for two years.
q Tunnage of wine and Poundage granted for severall years.
r Tunnage and Poundage, ut prius of Denizens, double of Strangers.
s Tunnage of wine and Poundage granted to Henry the Sixth for life with an exception of all woollen Cloth: and here Cloth was first excepted,Note. and was a leading exception in all subsequent acts.
t Tunnage of wine and Poundage granted to Edward the Fourth for life with no retrospect, but for the time to come.
Not printed, for he had many subsidies, but printed none.u At the Parliament holden Anno 1 Hen.7. a like Act was made for the grant of the Subsidies of Tunnage and Poundage to him for his life.
x And the like Subsidy was granted to King Henry the Eighth at the Parliament holden Anno 1. of his reign for his life.
| The like grant was made to Edward the Sixth. Queen Mary, Queen Elizabeth and King James for their severall lives, and in all these it is affirmed, that the like grants were made by Act of Parliament to King Henry the Seventh and King Henry the Eighth.
The consideration of the grant of these Subsidies of Tunnage and Poundage is ever, as is aforesaid, expressed in the grant, for the keeping and safeguard of the Seas, and for intercourse of merchandize safely to come into this Realm, and safely to passe out of the same. And this pertaineth properly to the office of the Lord Admirall to see the consideration of the Act to be performed. They are granted of the free good will of the subjects, and so expressly set down in the Parliament Roll.
In King James his reign, when I was a Commissioner of the Treasury, these Subsidies granted for life amounted to One hundred and threescore thousand pounds per annum and so letten to farm. The values of the merchandize for the which the Subsidy of Poundage is paid, do appear in a book of rates in print whereby the Merchant knows what he is to pay.A book of rates or values. The Subsidy of Tunnage of wine is certain in these Acts by the contents of the Vessels: and none of these Acts doe extend to any other liquid merchandize imported or exported, but unto wines only: and seeing nothing is more incertain then the continuance of the values of merchangdizes wherefore the Subsidy of Poundage is paid, it were good at every grant of them to set down the rates in a schedule annexed to the bill.
Subsidies temporary and usuall at this day.
Subsidies temporary and usuall at this day. And this is when the Commons in Parliament freely grant to the King an aid to be levied of every Subject of his lands or goods after the rate of 4 s. in the pound for lands, and 2 s. 8 d. for goods, and for Aliens for goods double, to such ends and for such considerations, and to be paid at such times, as by the Acts thereof (which are usuall and frequent) doe appear. And in former times in this kind of Subsidy, this order was obserbed, that over and above the Subsidy of Tunnage and Poundage, the Commons never gave above one Subsidy of this kind, and two Fifteens, (and sometime lesse) one Subsidy amounting to Seventy thousand pounds, and each fifteen at Twenty nine thousand pounds, or near thereabouts; nor above one Subsidy, which did rise to Twenty thousand pounds, the Clergy gave not.
At the Parliament holden in 31 Eliz. the Commons gave two Subsidies, and four Fifteens, which first brake the circle.
In 35 Eliz. three Subsidies and six Fifteens.
In 39 Eliz. three Subsidies and six fifteens.
In 43 Eliz. four Subsidies and eight Fifteens, &c.
In 31 Jac. Regis, three Subsidies and five Fifteens in shorter times then had been before.
In 3 Car. Regis, five Subsidies in shortest time of all.
And it is worthy of observation how quietly Subsidies granted in forms usuall and accustomable (though heavy) are borne; such a power hath use and custome: On the other side, what descontments and disturbances Subsidies framed in new molds doe raise, (such an inbred hatred novelty doth hatch) is evident by examples of former times:
As that of 4 Ric.2. a new invention of Subsidies of the Kings Subjects of either sex by the poll, &c. for the furnishing of the Earl of Buckingham for his going into France, whereupon a strong and a strange Rebellion ensued, wherein three great and worthy Officers were by the rascall Rebels barbarously and wickedly murdred, viz. Simon Sudbury Archbishop of Canterbury, Chancelour of England, the Prior of S. Johns of Jerusalem, Treasurer of England, and Sir John Cavendish Chief Justice of England.
In 4 Hen.7. another like new found Subsidy was granted, which raised a rebellion in the North, in which the noble Earl of Northumberland a Commissioner in that Subsidy, was by the Rebels cruelly and causelesly slain.
| In Anno 16 Hen.8. to furnish the King for his going in his royall person into France, a new device for getting of mony was set on foot, which made the headlesse and heedlesse multitude to rise in rebellion, untill Charles Brandon the noble Duke of Suff’ quieted, and dispersed them.
At the Parliament holden in 9 Edw.3. when a motion was made for a Subsidy to be granted of a new kind, the Commons answered, that they would have conference with those of their severall Countries and places, who had put them in trust, before they treated of any such matter.
Vide 9 Hen.6. nu. 15. Every Knights fee to pay 20 s. and so according to the value under or over, and so of the Clergy for lands purchased since 20 Edw.I. And all other having 20 l. lands not holden as is aforesaid, 20 s. &c. This whole Subsidy for certain doubts the King utterly released, so as there is no mention made of the same: But hereof thus much shall suffice.
Saepe viatorem nova, non vetus orbita fallit.
Of Fifteens, Quinzims, &c.
Fifteens, Quinzim or Task or Quinta decima.A Fifteen is a temporary Aid granted to the King by Parliament, which without further inquiry is certain, and therein differeth from the Subsidy, which is ever uncertain, untill it be assessed.
The Fifteen of ancient time was the fifteenth part of goods moveable, but in 8 Edw.3. all the Cities, Boroughs, and towns in England were rated certainly at the fifteenth part of the value at that time generally upon the whole town, whereof you shall read more at large in the Second part of the Institutes, in the last Chapter of Magna CartaVerb, Quintam decimam partem bonorum mobilium.
There is decima pars of the Laity, and for the most part of Cities and Boroughs by their goods (Vid.1 R.2. nu.26.) which proportionably is, secundum decimam quintam partem That which we call Tar, Tallage, Tenth, and Fifteen, the Saxons called Geldinn, we use the word changing g to y, for gelding, yeelding, &c.
No* Subsidy before the end of the Parliament, because it is to accompany the pardon.
Of Acts of Parliament of confirmation of Letters Patents.
We have read of particular Acts of confirmation of Letters Patents; but the first of lands, &c. that was the more generall, was the statute of 31 Hen.8. ca.13, of Monasteries (to make those lands the more passable) but after that, generall Acts of confirmation of Letters Patents have been very frequent.
How the Lords give their voices.
In the Lords House, the Lords give their voices from the puisne Lord seriatim by the word of [content, ]or [not content.]
This Law was made after the mariage of Queen Katherine Dowager of Henry the Fifth with Owen ap Meredith ap Grono (descended of the Princes of Wales) by whom she had issue Edmond of Hadham aforesaid, Earle of Richmond, and Jasper of Hatfeild, after Earle of Pembroke, and Duke of Bedford.
How the Commons give their voices.
The Commons give their voices upon the question, by Yea or No, and if it be doubtfull, and neither party yeild, two are appointed to number them; one for the Yea. another for the No: the Yea going out, and the No sitting: and thereof report is made to the House. At a Committee, though it be of the whole House, the Yeas go of one side of the House, and the Noes on the other, whereby it will easily appear which is the greatest number.
How Parliaments succeed not well in five Cases.
It is observed by ancient Parliament men out of Record, that Parliaments have not succeeded well in five Cases. First, when the King hath been in displeasure with his Lords, or with his Commons. 2. When any of the Great Lords were at variance between themselves. 3. When there was no good correspondence between the Lords and the Commons. 4. When there was no unity between the Commons themselves. 5. When there was no preparation for the Parliament before it began.
a For the 1: So essentiall is the Kings good will towards his Commons that it was one of the petitions of the Commons to the King, that he would require the Archbish. & all others of the Clergy to pray for his estate, for the peace & good government of the land, for the continuance of the Kings good will towards his Commons: Whereunto the thrice noble King assented with these effectuall words, The same prayeth the King: & many times the like petitions for the Lords. b How the King in all his weighty affairs had used the advice of his Lords & Commons, (so great a trust & confidence he had in them.) Alwaies provided, that both Lords & Commons keep them within the circle of the Law & custome of the Parliament.
c For the second: at the Parliament holden in 4 Hen.6. what variance was there between the Duke of Gloc. and the B. of Winchester, and their friends on either side: the successe was, that little was done in any Parliamentary course at that Parliament, and that little was of no moment.
d At the Parliament holden in the third year of Hen.6. the great controversie was between John Earl Marshall, and Richard Earl of Warwick with like successe.
e The like controversie between William Earle of Arundell and Thomas Earl of Devon, for superiority of place, with like event. And many more might be cited.
f And alwayes in the beginning amity was made between the Grandees of the Realm by shaking of hands and kissing, and sometime by submission.
For the third, when it was demanded by the Lords and Commons what might be a principall motive for them to have good successe in Parliament, it was answered, Eritis insuperabiles, si fueritis inseparabiles. Explosum est illud diverbium: Divide, & impera, cum radix & vertex imperii in obedientium consensu rata sunt.
| For the fourth, unity between the Commons themselves. It is most necessary in both these, and agreeable to the Parliament in the Book of Judges. Quasi homo unus, eadem mente, uno consilio.
For the fifth, the Summons of Parliament is by forty dayes or above before the sitting, to the end that preparations might be had for the arduous and urgent affaires of the realme: and that both the King, according to the example of King David, and likewise the Nobles and Commons should prepare: for praeparatae meditationes sunt semper saniores & meliores quam properatae, wherein both Houses may greatly expedite the businesse of the Commonwealth in Parliament if they will pursue the ancient custome of Parliament, viz. in the beginning thereof to appoint a select Committee to consider of the Bils in the two last Parliaments that passed both Houses, or either of them, and such as had been preferred, read, or committed, and to take out of them such as be most profitable for the Common-wealth.
The honour and antiquity of the Parliament.
For the honour and antiquity of the Parliament, see the first part of the Institutes, Sect. 164. Verb. Veigne les Burgesses, and in the Preface to the ninth Book of my Reports, fo. 1,2,3,4, &c. whereunto you may adde, Int’ leges Edwardi regis, cap. 8 De decimis Ecclesiae reddendis, Sect. De apibus vero, &c. Haec enim praedicavit beatus Augustinus, & concessa sunt à rege Baronibus & populo. A grant by expresse Act of Parliament. Vide infra, cap. 79. pag.
The power and jurisdiction of the Parliament.
a Of the power and jurisdiction of the Parliament for making of laws in proceeding by Bill, it is so transcendent and absolute, as it cannot be confined either for causes or persons within any bounds. Of this Court it is truly said: bSi antiquitatem spectes, est vetustissima, si dignitatem, est honoratissima, si jurisdictionem, est capacissima.
cHuic ego nec metas rerum, nec tempora pono.
Yet some examples are desired. d Daughters and Heirs apparant of a man or woman, may by Act of Parliament inherit during the life of the Ancestor.
e It may adjudge an Infant or Minor of full age.
f To attaint a man of treason after his death.
g To naturalize a meere Alien, and make him a Subject borne. h It may bastard a childe that by law is legitimate viz. begotten by an Adulterer, the husband being within the foure Seas.
To legitimate one that is illegitimate, and born before marriage absolutely. And to legitimate secundum quid but not simpliciter. As to take one example for many.
i John of Gaunt Duke of Lancaster had by Katherine Swinford before marriage four illegitimate children, viz. Henry, John, Thomas, and Joane.And because they were borne at k Beaufort in France, they were vulgarly called Henry De Beaufort, &c. John before the 20 year of Richard the Second was Knighted, and Henry became Priest. l At the Parliament holden 20 Ric.2. the King by Act of Parliament in forme of a Charter doth legitimate these three sonnes, and Joane the daughter: and the Charter beginneth thus. Rex, &c. Charissimis consanguineis nostris nobilibus virismJohanni Militi:nHenrico Clerico:oThomaepdomicello, ac dilectae nobis nobili mulieriqJohannae Beaufort domicellae Germanis praecharissimi avunculi nostri, Johannis Ducis Lancastriae natis ligeis | nostris Salutem, &c. Nos dicti avunculi nostri genitoris vestri precibus inclinati, vobiscū qui (ut asseritur) defectū nataliū patimini, ut hujusmodi defectu (quae ejusq; qualitatis quascunq: praesentibus habere volumus pro sufficienter expressis) non obstante ad quaecunque honoris dignitates,Note.(excepta dignitate regali) praeheminencias, status, gradus, & officia publica & privata tam perpetua quam temporalia, atq; feudal’ ac nobil’ quibuscunque nominibus nuncupantur, etiamsi ducatus, principat’, comitat’, Baronia, vel alia feuda fuerint, etiamsi mediate, vel immediate vel à nobis dependeant seu teneantur, praefici, promoveri, eligi, assumi & admitti, illaq; recipere, retinere, perinde libere & licite valeatis, ac si de legitimo thoro nati existeretis, quibuscunq; statutis seu consuetudinibus regni nostri Angliae in contrarium editis seu observatis (quae hic habemus pro totaliter expressis) nequaquam obstantibus; de plenitudine nostrae regalis potestatis, ac de assensu Parliamenti nostri tenore praesentium dispensamus, vosque & vestrum quemlibet Natalibus restituimus, & legitimamus. In cujus rei testimonium. Teste Rege apud Westm. 9 die Febr. Per ipsum regem in Parliamento.
In this Act are divers things worthy of observation. 1. The names whereby they were legitimated. 2. That this legitimation was not simpliciter, but secundum quid: for they were legitimated and made capable of all dignities, except the Royall Dignity: so as this legitimation extended not to make them or their posterities inheritable to the Crowne, but to all other dignities. 3. That before their legitimation, they were not created to any of their dignities. 4. The briefe and artificiall penning of this ligitimation, with generall words, as if the particularity were expressed, and with a brief non obstante, and with as little blemish as may be. 5.Note pro corona. And hereby it appeareth, that Henry the Seventh being son of Edmond of Hadham E. of Richmond, & Margaret his wife, daughter & heir of John de Beaufort D. of Somerset: which Margaret lineally descended from the said John de Beaufort, legitimated & made capable of all dignities, as is aforesaid. excepta regali dignitate, that the best title of Henry the Seventh to the Crown, was by Elizabeth his wife, eldest daughter of Edward the Fourth. Yet before this mariage the Crown was by Act of Parliament intayled to Henry the Seventh and to the heirs of his body, the right of the Crowne then being in the said Elizabeth, eldest daughter of Edward the Fourth 6. In this Act, the said Thomas before his legitimation could not be called Esquire, and therefore he hath this addition of Domicello, either derived of the French word Domoicell, which signifieth a young souldier notyetknighted, or signifieth nobly borne. And note, Johan, the daughter, had the addition of De Beaufort and Domicella in that sense also.
b And albeit I finde an attainder by Parliament of a subject of High Treason being committed to the Tower, and forth-comming to be heard, and yet never called to answer in any of the Houses of Parliament, although I question not the power of the Parliament, for without question the attainder standeth of force in law: yet this I say of the manner of the proceeding, Auferat oblivio, si potest; si non, utcunque silentium tegat: for the more high and absolute the jurisdiction of the Court is, the more just and honourable it ought to be in the proceeding and to give example of justice to inferiour Courts. But it is demanded, since he was attainted by Parliament, what should be the reason that our Historians do all agree in this that he suffered death by a law which he himself had made. For answer hereof, I had it of Sir Thomas Gawdye Knight, a grave and reverend Judge of the Kings Bench, who lived at that time, that King Henry the Eighth commanded him to attend the chiefe Justices, and to know whether a man that was forth comming might be attainted of High Treason by Parliament, and never called to his answer. The Judges answered, that it was a dangerous question, and that the High Court of Parliament ought to give examples to inferiour Courts for proceeding according to justice, and no inferiour Court could do the like; and they thought that the High Court of Parliament would never do it. But being by the expresse commandment of the king and pressed by the said Earle to give a directanswer: they said, that if he be attainted by Parliament, it could not come in question afterwards whether he were called or not called to answer. | And albeit their opinion was according to law, yet might they have made a better answer, for by the Statutes of Mag. Cart. ca. 29. 5 Edw.3. cap. 9. & 28 Edw.18. 3. cap. 5. No man ought to be condemned without answer, &c. which they might have certified, but facta tenent multa, quae fieri prohibentur the act of Attainder being passed by Parliament, did bind, as they resolved. Thepartyagainstwhom this was intended, was never called in question, but the first man after the said resolution, that was to attainted, and never called to answer, was the said Earl of Essex; whereupon that erroneous and vulgar opinion amongst our Historians grew that he died by the same law which he himself had made. The reheresall of the said Attainder can work no prejudice, for that I am confidently perswaded, that such honourable and worthy members shall be from time to time of both Houses of Parliament, as never any such Attainder, where the party is forth comming, shall be had hereafter without hearing of him.
aNunquid lex nostra judicat hominem, nisi prius audierit ab ipso, & cognoverit quid faciat? Doth our law judge any man, before it hear him and know what he doth? b It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him.
cAit Josua ad Acab, Fili mi, da gloriam domino Deo Israel, & confitere mihi quid feceris, ne abscondas.
dInterrogatus Levita maritus mulieris interfectae quomodo tantum scelus perpetratum esset, &c. And the conclusion is after hearing and discerning the cause, consider, consult, and then give sentence.
e And as evil was the proceeding in Parliament against Sir John Mortimer, third son of Edmond the second Earl of March (Descended from Lionell Duke of Clarence) who was indicted of high Treason for certain words, in effect, that Edmond Earl of March should be King by right of inheritance, and that he himself was next rightfull heir to the Crown after the said Earl of March; wherefore if the said Earl would not take it upon him, he would: and that he would goe into Wales, and raise an Army of 20000. men, &c. which indictment (without any arraignment or pleading) being meerly faigned to blemish the title of the Mortimers, and withall being insufficient in law, as by the same appeareth, was confirmed by Authority of Parliament; & the said Sir John being brought into the Parliament without arraignment or answer, judgement in Parliament was given against him upon the said indictment; That he should be carried to the Tower of London, and drawn through the City to Tiborn, and there hanged, drawn and quartered, his head to be set on London bridge, and his four quarters on the four gates of London, as by the Record of Parliament appeareth.
The proceeding in Parliament against Absents.
The ancient law and custome of the Parliament was, that when any man was to be charged in Parliament with any crime or offence, or misdemeanour, the Kings Writ was directed to the Sherif to summon and injoin the party to appear before the King in the next Parliament. For example.
Dominus Rex mandavit Vic’ quod assumptis secum quatuor de discretioribus & leg’ militibus Com’ sui in propria persona sua accederet ad Nicholaum de Segrave, & ipsum in praesentia praedictorum militum summon’ & ex parte domini regis firmiter ei injungeret quod esset coram domino rege in proximo Parliament’ suo apud Westm’ in primo adventu domini regis ibidem ad audiendam voluntatem ipsius domini regis super hiis, quae tunc ibidem proponere intenderet vers. eum, & ad faciendum & recipiendum ulterius quod curia domini regis consideraret in praemissis. Et Vic’ modo mandavit quod assumptis secum Thoma Wale, Waltero filio Roberti | de Daventry, Roberto de Gray de Wollaston, & Radulpho de Normavill quatuor milit’, & in propria persona sua accessit apud Stowe ad manerium praedicti Nicholai, et in praesentia eorundem militum summon’ praedictum Nicholaum, & ei firmiter injunxit quod esset coram domino rege in isto Parliamento nunc juxta formam & tenorem mandati praed’, &c.
Almaricus de Sancto Amando, Magister Johannes de Sancto Amando, Willielmus de Monte Acuto, Richardus Attehaw constabularius castri Oxon’, Ricūs de Hurle, Thomas de Carleton capellanus, Iohannes de Ros, Iohannes de Trenbrigg, Willielmus Attewarde frater ejus, & Philippus de Wigenton attachiat’ fuerunt per Vic’ in castro Oxon’ per praecept’ domini regis responsur’ eidem domino regi in Parliamento suo in Crastino Sancti Mathaei Apostoli Anno regni sui xxxiii. super quibusdam criminibus & transgresionibus infra scriptis, & inde per manucaptionem sufficient’ adjornat’ coram ipso domino rege hic ad hunc diem, scilicet a die Paschae in xv. dies, &c.
Or a writ might be directed to the party himself, when any complaint was made against him, De injuriis, gravaminibus, ut molestationibus, to appear in his proper person before the King and his Councell, etc. As for example:
Dominus Rex mandavit breve suum Roberto de Burghersh in haec verba. Edwardus Dei gratia, &c. Dilecto et fideli suo Roberto de Burghersh constabular’ castri sui Dover et custod’ suo quinque portuum. Salutem. Quia dilectus nobis in Christo Abbas de Faveresham & Robertus de Gurne balivus suus ejusdem villae coram concilio nostro apud Eborum existente de diversis injuriis, gravaminibus et molestationibus eis per vos voluntar’ et absq; causa rationabili multipliciter illatis graves querimonias deposuerunt, petentes instanter ut eissuperhocfierifaceremusremedium opportunum; propter quod dedimus eis diem coram nobis et concilio nostro a die Pasch. in xv. dies, &c. ad querelas suas predictas tunc ostendend’, et ad faciend’ super hoc ulterius et recipiend’ quod Iustitia suaderet: Vobis mandamus, quod in propria persona vestra sitis coram nobis et concilio nostro ad diem praedict’ praefatis Abbati et balivis suis super praemissis respons’, factur’ et receptur’ quod curia nostra consideraverit in hac parte, & ab injuriis, gravaminibus, molestationibus et districtionibus indebitis praefatis Abbati et balivis suis interim inferendis penitus desistendo. Et habeatis ibi hoc breve. Teste me ipso apud Linliscu xxx. die Januarii, Anno regni nostri xxx. Virtute cujus brevis praedictus Robertus venit, et breve illud protulit ad diem in eodem contentum. Et praedictus Abbas venit et querelas suas protulit in quodam rotulo scriptas, et quas in curia hic querelando ostendit et legere fecit, de quibus prima est haec, &c.
Now they which absent themselves shall be proceeded withall, Vide 50 Edw.3. nu.37. Adam Buries case, 2. parte Patent. 21 Ric.2. nu.15, 16. Rot. Par. 17 Ric.2. nu.28. 11 Hen.4. nu.37, 38. 15 Hen.6. fo.17. Sir John Pilkingtons case.
And where by order of law a man cannot be attainted of high treason, unlesse the offence be in law high treason, he ought not to be attainted by generall words of high treason by Authority of Parliament (as sometime hath been used) but the high treason ought to be specially expressed, seeing that the Court of Parliament is the highest and most honourable Court of Justice, and ought (as hath been said) give example to inferiour Courts.
There was an Act of Parliament made in the 11 year of King Hen.7. which had a fair flattering preamble, pretending to avoid divers mischiefs, which were, 1. To the high displeasure of Almighty God. 2. The great let of the | Common law, and 3. The great let of the wealth of this land: And the Purvien of that Act tended in the execution contrary, ex diametro, viz. to the high displeasure of Almighty God, the great let, nay the utter subversion of the Common law, and the great let of the wealth of this land, as hereafter shall manifestly appear. Which Act followeth in these words:
The King our Soveraign Lord calling to his remembrance that many good Statutes and Ordinances be made for the punishment of riots, unlawfull assemblies, reteinders in giving and receiving of liveries, signs and tokens unlawfully, extortions, maintenances, imbracery, excessive taking of wages contrary to the Statute of Labourers and Artificers, the use of unlawfull games, inordinate Apparell, and many other great enormities and offences, which been committed and done daily contrary to the good statutes, for many and divers behoofull considerations severally made and ordained, to the displeasure of Almighty God, and the great let of the Common law, and wealth of this land, notwithstanding that generally by the Justices of the Peace in every shire within this Realm in the open Sessions is given in charge to enquire of many offences committed contrary to divers of the said Statutes, and divers enquests thereupon there straitly sworn, and charged before the said Justices to enquire of the premisses, and therein to present the troth which any letted to be found by imbracery, maintenance, corruption and favour; by occasion whereof the said Statutes be not, nor cannot be put in due execution: For reformation whereof, for so much that before this time the said offences, extortions, contempts, and other the premisses might not, nor as yet may be conveniently punished by the due order of the law, except it were first found and presented by the verdict of twelve men there to duly sworn, which for the causes afore rehearsed will not find nor yet present the truth: Wherefore be it by the advice and assent of the Lords Spirituall and Temporall, and the Commons in this present Parliament assembled, and by authority of the same enacted, ordained and established, that fromhenceforth as well the Justices of Assise in the open Sessions to be holden afore them, as the Justices of Peace in every County of the said Realm, upon information for the King before them to be made, have full power and authority by their discretion to hear and determine all offences and contempts committed and done by any person or persons against the form, Ordinance and effect of any statute made and not repealed, and that the said Justices upon the said information have full power and authority to award and make like processe against the said offenders and every of them, as they should or might make against such person or persons as been present and indicted before them of trespasse done contrary to the Kings peace, and the said offender, or offenders duly to punish according to the purport, form, and effect of the said Statutes. Also be it enacted by the said Authority, that the person which shall give the said information for the King shall by the discretion of the said Justices content and pay to the said person or persons against whom the said information shall be so given his reasonable costs and dammages in that behalf sustained, if that it be tried or found against him, that so giveth or maketh | any such information. Provided always, that any such information extend not to treason murder, or felony, nor to any other offence, wherefore any person shall lose life, or member, nor to lose by nor upon the same information any lands, tenements, goods or chattels to the party making the same information. Provided also that the said informations shall not extend to any person dwelling in any other shire, then there, as the said information shall be given or made, saving to every person and persons, cities, and towns, all their liberties and franchises to them and every of them of right belonging and appertaining.
By pretext of this law Empson and Dudley did commit upon the Subject unsufferable pressures and oppressions, and therefore this statute was justly soon after the decease of Henry the Seventh repealed at the next Parliament after his decease, by the statute of 1. Hen.8. ca. 6.
A good caveat to Parliaments to leave all causes to be measured by the golden and streight metwand of the law, and not to the incertain and crooked cord of discretion.
It is not almost credible to foresee, when any Maxime, or Fundamentall law of this Relam is altered (as elsewhere hath been observed) what dangerous inconveniences doe follow,The danger ensuing by alteration of any of the Maximes of the law. which most expressly appeareth by this mostunjust and strange Act of 11 Hen.7. for hereby not only Empson and Dudley themselves, but such Justices of Peace (corrupt men) as they caused to be authorized, committed most grievous and heavy oppressions and exactions, grinding of the face of the poor Subjects by penall laws (be they never so obsolete or unfit for the time) by information only without any presentment or triall by Jury being the ancient birthright of the Subject, but to hear and determine the same by their discrtion, inflicting such penalty, as the statutes not repealed imposed: These and other like oppessions and exactions by or by the means of Empson and Dudley and their instruments, brought infinite treasures to the Kings Cofers, whereof the King himself in the end with great grief and compunction repented, as in another place we have observed.
This statute of 11 Hen.7 we have recited, and shewed the just inconveniences thereof, to the end, that the like should never hereafter be attempted in any Court of Parliament. And that others might avoid the fearfull end of those two time-servers, Empson and Dudley, Qui eorum vestigia insistunt, eorum exitus perhorrescant.
See the statute of 8 Edw.4. ca. 2 the Statute of Liveries, an Information, &c. by the discretion of the Judges to stand as an originall, &c. This Act is deservedly repealed.
Vide 12 Ric.2. cap. 1. Punishment by discrtion &c. Vide 5 Hen.4. ca. 6. 8. See the Comission of Sewers, Discretion ought to be thus described, Discretio est discernere per legem quid sit justum. And this description is proved by the Common law of the land, for when a Jury doe doubt of the law, and desire to doe that which is just, they find the speciall matter, and the entry is, Et super tota materia, &c. petunt discretionem Justiciariorum, and sometime, advisamentum & discretionem Justiciariorum in praemissis, &c. , that is, they desire that the Judges would discern by law what is just, and give judgement accordingly.
| Acts against the power of the Parliament subsequent bind not.
An Article of the Statute made in 11 Ric.2. cap.5. is, that no person should attempt to revoke any Ordinance then made, is repealed, for that such restraint is against the jurisdiction and power of the Parliament, the liberty of the subject and unreasonable. And likewise the last Will and Testament of king Richard the Second. under the Great Seal, Privy Seal, and Privy Signet, whereby the devised certain mony, treasure, &c. to his successors upon condition to observe all the Acts and orders at the Parliament holden in Anno 21 of his reign, was holden unjust and unlawfull, for that it restrained the Soveraign liberty of the Kings his Successors.
Sundry Lords of Parliament (but no Bishops) or six of them, and certain knights of shires of the Commons or three of them are authorised by Authority of Parliament to examine answer, and plainly determine all the Petitions, exhibited in that Parliament, and the matters contained in the same by their good advice and discretion, &c. The high power of a Parliament to be committed to a few is holden to be against the dignity of a Parliament and that no such Commission ought to be granted.
An Act in 11 Ric.2. ca.3. that no man against whom any judgment, or forfeiture was given should sue for pardon or grace, &c. was holden to be unreasonable without example, and against the law and custome of Parliament, and therefore that branch by Authority of Parliament was adnichaled, and made void.
Acts of Parliament ought to be plainly, and clearly, and not cunningly and darkly penned, specially in criminal causes.Also I find that in times past the Houses of Parliament have not been clearly dealt withall, but by cunning artifice of words utterly deceived, and that in cases of greatest moment, even in case of High Treason, as taking one example for a warning in like cases hereafter.
King Henry the Eighth after the Clergy of England had in their Convocations acknowledged him Supream Head of the Church of England, thought it no difficult matter to have the same corroborated and confirmed by Authority of Parliament, but withall secretly and earnestly desired that the impugners and deniers thereof, though it were but by word, might incur the offence of High Treason, and finding the one, that is, the acknowledgement of his Supremacy likely to have good passage, and having little hope upon that which he found to effect the other concerning High Treason, sought to have it passe in some other Act by words closely cowched, though the former Act of Supremacy had been the proper place. And therefore in the Act of recognition of his Supremacy it is enacted, that he should have annexed and united to the Crown of this Realm the Title and Stile thereof: and afterwards towards the end of the Parliament, a bill was preferred whereby many offences be High Treason, and thereby it is enacted, “That if any person or persons by a word or writing, 1. practise or attempt any bodily harm to the King, the b Queen or their heirs apparant, 2. or to c deprive them or any of them, of their dignity, d title, or name of their royall estates, 3. or that the King should be an e Heretique, Schismatique, Tyrant, Infidell, or Usurper of the Crown, &c. that every such persons so offending should be adjudged Traytors, &c.” So as now by this latter Act, he that by word or writing attempts to deprive the King of the title of his royall estate is a Traytor, but the former Act had annexed to the Crown the title of the stile of Supremacy, and therefore he that should by word of writing attempt to deprive the King thereof should be a Traytor. And f upon this law of 26 Hen.8. ca.13. for denying of the Kings Supremacy divers suffered death as incase of High Treason, whereas all laws, especially penall, and principally those that are penall in the highest degree g ought to be so plainly and perspicuously penned,What qualities laws ought to have. as every Member of both Houses may understand the same, and according to his knowledge and conscience give his voice. hErit autem lex honesta, justa, possibilis, secundum naturam & secundum conseutudinem patriae, temporique conveniens, necessaria & utilis, manifesta quoque, ne aliquid per obscuritatem incautum cap-|-tione contrudat, nullo privato commodo, sed pro communi civium utilitate conscripta, ideo in ipsa constitutione ista consideranda sunt, quia cum leges institutae fuerint non erit liberum arbitrium judicare de ipsis, sed oportebit judicare secundum ipsas, which be excellent rules for: all Parliaments to follow. But the Statute of 5 Eliz. ca. 1. hath concerning the Supremacy dealt plainly and perspicuously as by the same appeareth.
And albeit it appeareth by these examples, and many other that might be brought, what transcendent power and authority this Court of Parliament hath, yet though divers Parliaments have attempted to barre, restrain, suspend, qualifie, or make void subsequent Parliaments, yet could they never effect it, for the latter Parliament hath ever power to abrogate, suspend, qualifie, explain, or make void the former in the whole or in any part thereof, notwithstanding any words of restraint,Subsequent parliaments cannot be restrained by the former. prohibition, or penalty in the former: for it is a maxime in the law of the Parliament, quod leges posteriores priores contrarias abrogant.
Acts of Parliament enrolled in other Courts.
For the better observation of any Act of Parliament enacted for the Commonwealth, or of a Petition of right, or Judgment in Parliament, or the like, and to incourage the Judges that the same may be duly executed, the same may be inrolled in the Courts of Justice in this manner. The tenor of the Record must be removed into the Chancery by writ of Certiorari and delivered into the Kings Bench by the hands of the Chancelor or Lord Keeper and sent by Mittimus to the Court of Common pleas, and by like Mittimus into the Exchequer and the King by his writ may command any Court to observe and firmly to keep such an Act of Parliament, as it appeareth by these two precedents. Ex Rotulo Claus. Anno 28 Edw.1. m.2. Dors. Rex Thesaurar’ & Baronibus suis de Scaccar’ Salutē. Quia volumus quod Magna Carta domini Henrici quondam Regis Angliae patris nostri de libertatibus Angliae quam confirmavimus & etiam innovavimus in omnibus & singulis articulis suis firmiter & inviolabiliter observetur. Vobis mandamus quod Cartam praedictam in omnibus & singulis suis articulis quantum in vobis est coram vobis in dicto Scaccario observari faciatis firmiter & teneri. T.R. apud Dunfres 23. die Octobris.
Rex Justic’ suis de Banco Salutem: Cum in alleviationem gravaminum quae populus regni nostri occasione guerrarum hactenus toleravit, ac in emendationem status ejusdem populi, nec non ut ex hoc se exhibeat ad nostra serviciapromptiorem, nobisque in agendis nostris libentius subsidium faciat in futurum, quosdam articulos eidem populo plurimum (annuente Domino) profuturos de gratia nostra speciali duxerimus concedendos. Vobis mandamus quod dictos articulos quos vobis mittimus sigillo nostro consignatos coram vobis in banco praedicto quantum in vobis est juxta vim, formam & effectum eorundem observari faciatis firmiter & teneri. T. R. apud Dunfres 30. die Octobris.
Every Member of the Parliament ought to come.
Every Lord Spirituall and Temporall, and every Knight, Citizen and Burgesse shall upon Summons come to the Parliament, except he can reasonably, and honestly excuse himself, or else he shall be amerced &c. that is, respectively, a Lord by the Lords, and one of the Commons by the Commons.
By the Statute of 6 Hen.8. ca.16 no Knight, Citizen or Burgesse of the House of Commons shall depart from the Parliament without licence of the Speaker and Commons, the same to be entred of record in the book of the Clerk of the Parliament, upon pain to lose their wages.
| If a Lord depart from Parliament without license, it is an offence done out of the Parliament, and is finable by the Lords: and so it is of a Member of the House of Commons, he may be fined by the House of Commons. Vide 1 & 2 Ph. & Mar. coram rege. Rot.48. divers informations by the Attorny Generall for departing without license, ut supra.
* The punishment of Sheriffes for their negligence in retorning of Writs or for leaving out of their retorns any City or Borough which ought to send Citizens and Burgesses.
Advice concerning new and plausible projects and offers in Parliament.
When any plausible project is made in Parliament to draw the Lords and Commons to assent to any Act (especially in matters of weight and importance) if both Houses do give upon the matter projected and promised their consent, it shall be most necessary, they being trusted for the Commonwealth, to have the matter projected and promised (which moved the Houses to consent) to be established in the same act, lest the benefit of the Act be taken, and the matter projected and promised never performed, and so the Houses of Parliament performe not the trust reposed in them. As it fell out (taking one example for many) in the reigne of Hen.8. On the Kings behalfe the Members of both Houses were informed in Parliament, that no King or Kingdome was safe, but where the King had three abilities. First, To live of his own, and able to defend his kingdome upon any sudden invasion or insurrection. 2. To aide his confederates, otherwise they would never assist him. 3. To reward his well deserving servants. Now the project was, that if the Parliament would give unto him all the Abbies, Priories, Friories, Nunneries, and other Monasteries, that for ever in time then to come, he would take order that the same should not be converted to private use: But first, that his Exchequer for the purposes aforesaid should be enriched. Secondly, the kingdome strengthened by a continuall maintenance of 40 thousand well trained souldiers with skilfull Captains and Commanders, Thirdly, for the benefit and case of the Subject, who never afterwards (as was projected) in any time to come should be charged with Subsidies, Fifteenths, Loanes, or other common aides. Fourthly, lest the honour of the Realme should receive any diminution of honour by the dissolution of the said Monasteries there being 29 Lords of Parliament of the Abbots and Priors (that held of the King per Baroniam whereof more in the next lease) that the King would create a number of Nobles, which we omit. The said Monasteries were given to the King by authority of divers Acts of Parliament, but no provision was therein made for the said project, or any part thereof; only ad faciend, populum these possessions were given to the King his heirs and successors to do and use therewith his and their own wils to the pleasure of Almighty God, and the honour and profit of the Realme.
Now observe the Catastrophe; in the same Parliament of 32 Hen.8. when the great and opulent Priory of Saint Johns of Jerusalem was given to the King, he demanded and had a Subsidie both of the Clergie and Laity. And the like he had in 34 H.8 and in 37 H.8. he had another Subsidie. And since the dissolution of the said Monasteries he exacted divers loanes, and against law received the same.
Whom the King may call to the Lords House of Parliament.
If the king by his Writ calleth any Knight or Esquire to be a Lord of the Parliament, he cannot refuse to serve the King there in communi illo concilio, for the good of his country. But if the King had called an* Abbot, Prior, or other regular Prelate by Writ to the Parliament to the Common Councell of the Realme, if he held not of the King per Baroniam, he might refuse to serve in | Parliament, because quoad secularia he was mortuus in lege, and therefore not capable to have place and voice in Parliament unlesse he did hold per Baroniam and were to that Common Councell called by Writ, which made him capable: and though such a Prelat Regular had been often called by Writ, and had de facto had place & voice in Parliament, yet if in rei veritate he held not per Baroniam, he ought to be discharged of that service, and to sit in Parliament no more.
a For that the Abby of Leicester was founded by Robert Fitz-Robet Earle of Leicester (albeit the patronage came to the Crowne by the forfeiture of Simon de Mountford Earle of Leic.) yet being of a subjects foundation, it could not be holden per Baroniam, and therefore the Abbot had no capacity to be called to the Parliament and thereupon the King did grant, quod idem Abbas & successores sui de veniendo ad Parliamenta & concilia nostra vel haeredum nostrorum quieti sint & exonerati imperpetuum.
bDe jure & consuetudine Angliae ad Archidiaconatum Cantuariensem, &c. Abbates, Priores, aliosq; Praelatos quoscunque per Baroniam de domino rege tenentes pertinet in Parliamentis regiis quibuscunque ut Pares regni praedicti personaliter interesse, ibiq; de regni negotiis ac aliis tractari consuetis cum caeteris dicti regni Paribus ac aliis ibidem jus interessendi habentibus consulere & tractare, ordinate, statuere, & diffinire, ac caetera facere quae Parliamenti tempore ibid. immunient faciend.
No man ought to sit in that High Court of Parliament, but he hath right to sit there: for it is not only a personall offence in him that sitteth there without authority, but a publick offence to the Court of Parliament, and consequently to the whole Realme. But all the cases abovesaid, and others that might be remembered touching this point, as little Rivers, do flow from the fountaine of Modus tenendi Parliamentum, where it is said.Ad Parliamentum summoneri & venire debent ratione tenurae suae omnes & singuli Archiepisc’, Episcopi, Abbates, Priores & alii majores cleri qui tenent per comitatum vel baroniam ratione hujusmodi tenurae, & nulli minores, nisi eorum praesentia necessaria vel utilis reputetur, &c.
One rare and strange creation of a Lord regular to Parliament we cannot passe over, which was, That King Hen.8. in the fifth year of his reign, by his Letters Patents under the Great Seale, did grant unto Richard Banham Abbot of Tabestock in the County of Devon, being of his patronage, and to the successors of the said Abbot, ut eorum quilibet, qui pro tempore ibidem fuerit Abbas, sit & erit unus de spiritualibus & religiosis dominis Parliamenti nostri, haeredum & successorum nostrorum, gaudend’ honore, privilegio & libertatibus ejusdem.
By that which hath been said, it appeareth that this creation of a regular Lord of Parliament was voide, for that the Abbot was neither Baro, nor had Baroniam, &c. And if the King might create Abbots or Priors Lords of Parliament, in this manner, by the same reason he might create Deans and Archdeacons Lords of Parliament, which without question he cannot.
By the Act of Parliament of 10 Hen.2. called the Assise of Clarendon, it is declared, Ut pars consuetudinum & libertatum antecessorum Regis, viz.Henrici primi & aliorum, quae observari debent in regno & ab omnibus teneri, viz. Archiepiscopi, Episcopi, & universae personae regni, qui de rege tenent in capite habeant possessiones suas de rege sicut baroniam, & inde respondeant Justiciariis & ministris regis, & sequantur & faciant omnes consuetudines regias, & sicut caeteri barones debent interesse judiciis Curiae regis cum baronibus, quousq; perveniatur ad diminutionem membrorum vel ad mortem. , So as by this Act a tenure of the king in chiefe was in equipage with a Barony.
And King John by his great Charter of liberties made Anno 17 of his reigne granteth, Quod faciemus summoneri Archiepiscopos, Episcopos, Abbates, Comites, & Majores Barones regni singulatim per literas nostras. Out of this Clause we are to observe these things: First, that these Barons called here Majores, were Lords of Parliament, and called thereunto by the Kings Writs, Secondly, that they were called Majores comparatively, and that was in respect | of others which were called Barones minores, or Nobiles minores, and were freeholders that hold by Knights Service and Escuage,Nota, a Knights fee is the service of a Knight, that is of a man at Arms, or of War. i. Servitium scuti, of three sorts, viz. Milites, Armigeri, & Generosi, knights, Esquires, and Gentlehomes, or Gentlemen. These Barones minores were Lords of Mannors, and had not the dignity of Lords, but had Courts of their Freeholders, which to this day are called Court Barons, Curiae Baroniar’. Of this Baron it is said in that law made by King Edward before the Conquest: Barones qui suam habent *Curiam de suis hominibus, videant ut sic de eis agant, quatenus erga deum reatum non incurrant, & regem non offendant.
Baro à Bar, Germanica lingua liberum & sui juris significat, 1. Which agreeth well with that which hath been said. 2. That Baro major was called Baro major regni. 3. That every greater Baron was severally summoned by the Kings Writ, which continueth to this day.
The fees of the Knights, Citizens, and Burgesses of Parliament.
First, for the Knight of any County it is 4 s. per diem, and so it hath been time out of mind, which is particularly expressed in many Records, but let us take one in haec verba. Johannes Shordich unus militum comitatus Middlesex venientium ad Parliamentum tent’ apud Westm’ in Cro. Animarum ultim’ praeterit’ habet allocationem 4 li. & 4 s. pro 21 diebus pro expensis suis veniendo ad Parliament’ praedict’ ibid. morando, & exinde ad propria redeundo, capiendo per diem 4 s. Teste Rege apud Westm’ 24 die Novemb. Anno 46. , Every Citizen and Burgesse is to have 2 s. per diem, ut supra, mutatis mutandis.
aNota the Writ De expensis militum, on the expenses of soldiers &c. both comprehend the summe according to the abovesaid computation, and a commandment to the Sheriffe to levie the same bDe communitate comitatus praedict’ tam infra libertates, quam extra (Civitatibus & Burgis de quibus cives & burgenses ad Parliamentum nostrum, &c. venerunt duntaxat exceptis.) The like Writs to the Sheriffes De expensis civium & Burgensium to levie the same in Cities and Boroughs.
c An. 1 Ric.2. nu.11. The Commons petitioned in Parliament, that all persons having Lay fee might contribute to the charge of the Knights, and to all tallages. The King answered, [The Lords of the Realm will not lose their old liberties,] Note the Writ is De communitate.
d Also there is a Writ in the register De expensis militis non levandis ab hominib’ de antiquo dn̄co nec ab nativis.e , Other discharges De expensis militū.
f For the wages of the knights of the Shire of Cambridge see the statute of 34 Hen. 8. cap.24. Consimile pro Insula de Ely, &c.
Hen. 4. An.14. of his reigne summoned a Parliament Cr̄o. Purificationis, On the morrow of the Purification and he deceased 20 Martii following, so as the Parliament was dissolved by his decease. Thereupon it was a question, whether the Knights and Burgesses should have their wages seeing nothing passed in that Parliament. And it was resolved, that if upon view of the Kings h Records any like presidents may be found, allowances of their fees shall be made. i Also the Clergy were contributory by reason of their Benefices to the expenses of the procurators of the Clergy.
k But Chaplains which are Masters of the Chancery and attendants at the Parliament, shall not be contributory by reason of their Benefices to the expenses of the Clergy, as by the Register ubi supra above appears: and this was by an Act of Parliament made in* 4 Edw. 3 which in generall words is recited in the Writ directed to the Arch-deacon for their discharge.
Who be eligible to be a Knight, Citizen, or Burgesse of Parliament.
A Knight Baneret being no Lord of Parliament is eligible to be Knight, Citizen, or Burgesse of the House of Commons being under the degree of a Baron, who is of the lowest degree of the Lords House. But Thomas Camois was not | only a Knight Baneret, but a Baron and Lord of Parliament in Anno 7 Ric. 2 and served in that Parliament as a Baron of the Realme, and therefore as of a thing notorious he was discharged. One under the age of 21 years is not eligible, neither can any Lord of Parliament sit there untill he be of the full age of 21 years.
An Alien cannot be elected of the Parliament, because he is not the Kings liege subject, and so it is albeit he be made Denizen by Letters Patents, &c. for thereby he is made quasi, seu tanquam ligeus; but that will not serve, for he must be ligeus revera, and not quasi, &c. And we have had such an one chosen and disallowed by the House of Commons, because such a person can hold no place of judicature: but if an Alien be naturalized by Parliament, then he is eligible to this or any other place of judicature.
But it is objected that Gilbert de Umphrevill Earle of Andgos in Scotland, was called by the Kings Writ to the Parliament in 39 Edw. 3. by the name of Gilbert Earle of Andgos: and in a Writ of Ravishment of Ward brought against him, by the name of Gilbert Umphrevill Chivaler he pleaded to the Writ, that he was Earle of Andgos not named in the Writ: and for that he was summoned to every Parliament by the name of the Earle of Andgos, and the King sent to him a Writ of Parliament under the Great Seale, as to a Peer of the land, by judgement of the Court the Writ did abate. We have searched for the truth of this case, and do finde it in the Plea Rols in this manner.
Richard de Umphrevill Baron of Prodhowe and Redesdale in the County of Northumberland, had issue Gilbert, who after the death of his Father was a Baron of this Realm, and in the reign of Hen. 3. married with Mawde daughter and heir of the Earl of Andgos in Scotland, who by her had issue Gilbert, who was Earle of Andgos as heir to his mother, and Baron of Prodhow and Redesdale as heir to his father: he sat in Parliament upon summons by Writ in 27 Edw. 1. 28 Edw. 1. 30 Edw. 1. 35 Edw. 1. 1 Edw. 2. and 2 Edw. 2. by the name of Gilbert Earle of Andgos. Robert his sonne sat in Parliament, Anno 12 Edw. 2. by the same name of dignity, and so forth, all E. the Seconds reign.All this doth appear in the Rols of Parliament in all the severall time. And Gilbert his sonne sat in Parliament in 6 Edw. 3. and in every Parliament following untill, and in 4 Ric. 2. by the same name. And in Gilbert his sonne (who deceased in Anno 15 Hen. 6) that surname of Umphrevilceased. Hereby it appeareth that the said Richard Umphrevil and his posterity, from whence soever they originally descended, were liege Englishmen: for if they had been Aliens, they could not have enjoyed the Lordships of Prodhowe, Otterborne, Harbottle, and Redesdale in England, nor the Barony of Kime in Lancashire,These two were commonly called the Erles of Kime. which the two last Gilberts enjoyed, And note, the Book in 39 Edw. 3. concludeth, that Gilbert Umphrevil was summoned to the Parliament under the Great Seale, Come un Pier del Realme.
A Bishop elect may sit in Parliament as a Lord thereof.
Of Knights, Citizens and Burgesses of Parliament.
None of the Judges of the Kings Bench, or Common Pleas. or Barons of the Exchequer that have judiciall places can be chosen knight, Citizen, or Burgesse of Parliament, as it is now holden, because they be assistants in the Lords House; and yet you may reade in the* Parliament Roll, An. 31 Hen. 6. that Thorp Baron of the exchequer was Speaker of the Parliament. But any that have judiciall places in the Court of Wards, Court of Duchie, or other Courts Ecclesiasticall, or Civill, being no Lord of Parliament, are eligible.
None of the Clergy, though he be of the lowest Order, are eligible to be Knight, Citizen, or Burgesse of Parliament, because they are of another body, viz. of the Convocation.
A man attainted of treason or felony, &c. is not eligible: for concerning the election of two Knights, the words of the Writ be, Duos milites gladiis cinctos magis idoneos, & discretos eligi fac. And for the election of Citizens & Burgesses, | the words of the Writ be, Duos, &c. de discretioribus & magis sufficientibus, which they cannot be said to be, when they are attainted of treason or felony, &c.
Maiors and Bailiffes of Townes Corporate are eligible against the opinion in Brook, Anno 38 Hen.8. tit’ Parliament.
Any of the profession of the Common Law, and which is in practice of the same, is eligible. For he which is eligible of common right cannot be disabled by the said Ordinance in Parliament in the Lords House in 46 Edw.3. unlesse it had been by Act of Parliament: and if it had been by authority of Parliament, yet had the same been abrogated by the said statues of 5 Ric. 2. stat. 2. cap. 2. and 7 Hen. 4. cap. 15. which are generall lawes without any exception, as hath been said.
At a Parliament holden at Coventry Anno 6 Hen. 4. the Parliament was summoned by Writ (and by colour of the said Ordinance) it was forbidden, that no Lawyer should be chosen Knight, Citizen, or Burgesse, by reason whereof this Parliament was fruitlesse, and never a good law made thereat, and therefore called Indoctum Parliamentum, or Lack-learning Parliament. And seeing these Writs were against law, Lawyers ever since (for the great and good service of the Common-wealth) have been eligible: for, as it hath been said, the Writs of Parliament cannot be altered without an Act of Parliament: and albeit the prohibitory clause had been inserted in the Writ, yet being against law, Lawyers were of right eligible, and might have been elected Knight, Citizen, or Burgesse in that Parliament of 6 Hen. 4.
By speciall order of the House of Commons the Attorny Generall is not eligible to be a Member of the House of Commons.
At the Parliament holden 1 Caroli Regis, the Sheriffe for the County of Buckingham was chosen Knight for the County of Norff. and returned into the Chancery: and having a Subpena out of the Chancery served upon him, at the suit of the Lady C. pendente Parliamento, upon motion, he had the priviledge of Parliament allowed unto him by the judgement of the whole House of Commons.
Who shall be Electors of Knights, Citizens, and Burgesses, how and when: and of Elections.
Who shall be electors, and who shall be chosen, and the time, place, and manner of election, and therein the duty of the Sheriffe, you may reade in the positive lawes of 7 Hen. 4. cap.15. 11 Hen. 4. cap.1. 1 Hen. 5. cap.1. 8 Hen. 6. cap.7. 10 Hen. 6. ca.2. 23 Hen. 6. cap.15. 6 Hen. 6. cap.4. &c. which need not here be particularly rehearsed.
No Knight, Citizen or Burgesse can sit in Parliament before he hath taken the Oath of Supremacy.
Vide. Rot. Claus. 7 Ric. 2. 7 Octobris in Dors. Sir Thomas Moreville elected one of the Knights for the County of Hertford, Ibid. James Berners chosen to serve in Parliament, and both of them discharged. See the Record.
No election can be made of any Knight of the Shire but between 8 and 11 of the clock in the forenoone: but if the election be begun within that time, and cannot be determined within those hours the election may be made after.
For the election of the Knights, if the party or the Freeholders demand the Poll, the Sheriffe cannot deny the scrutiny for he cannot discerne who be Freeholders by the view: and though the party would wave the Poll yet the Sheriffe must proceed in the scrutiny.
If the King doth newly incorporate an ancient Borough (which sent Burgesses to the Parliament) and granteth that certain selected Burgesses shall make election of the Burgesses of Parliament, where all the Burgesses elected before, this Charter taketh not away the election of the other Burgesses. And so, if a City, &c. hath power to make Ordinances, they cannot make an Ordinance that a lesse number shall elect Burgesses, for the Parliament thenmade the election | before; for free elections of Members of the high Court of Parliament are pro bono publico, and not to be compared to other cases of election of Mayors, Bailiffes, &c. of Corporations, &c.
If one be duly elected Knight, Citizen, or Burgesse, and the Sheriffe returne another, the returne must be reformed, and amended by the Sheriffe and he that is duly elected must be inserted: for the election in these cases is the foundation, and not the return.
By originall grant or by custome, a selected number of Burgesses may elect and binde the residue.
Concerning Charters of Exemption.
The King cannot grant a Charter of exemption to any man to be freed from election of Knight, Citizen, or Burgesse of the Parliament (as he may do of some inferiour Office or places) because the elections of them ought to be free, and his attendance is for the service of the whole Realme and for the benefit of the King and his people, and the whole Common-wealth hath an interest therein: and therefore a Charter of exemption that King Henry the sixth had made to the Citizens of York of exemption in that case was by Act of Parliament enacted and declared to be voide. And though we finde some presidents that Lords of Parliament have sued out Charters of exemption from their service in Parliament, yet those Charters are holden to be void: for though they be not eligible, as is aforesaid, yet their service in Parliament is for the whole Realme, and for the benefit of the king and his people, of which service he cannot be exempted by any Letters Patents. And if he hath laesam phantasiam or be extremely sick, or the like, these be good causes of his excuse in not comming, but no cause of exemption, for he may recover his memory and health, &c. So as the said presidents were grants de facto, not de jure. for if the King cannot grant a Charter of exemption from being of the grand Assise in a Writ of right, or of a Jury in an Attaint for the mischiefe that may follow in those private actions, à fortiori, he cannot grant any exemption to a Lord of Parliament; for his service in Parliament is publick for the whole Realme. But if any Lord of Parliament be so aged, impotent, or sick, as he cannot conveniently without great danger travell to the High Court of Parliament, he may have license of the King under the Great Seale to be absent from the same during the continuance or prorogation thereof: but if the rehearsall be not true, or if he recover his health, so as he become able to travell, he must attend in Parliament. Or without any such license obtained, if he be so aged, impotent, or sick, as is aforesaid, and yet is amerced for his absence, he may reasonably and honestly excuse himselfe by the statute of 5 Ric. 2.
After the precept of the Sheriffe directed to the City or Borough for making of election, there ought secundum legem & consuetudinem Parliam. to be given a convenient time for the day of the election; and sufficient warning given to the Citizens or Burgesses that have voices, that they may be present: otherwise the election is not good, unlesse such as have voyces doe take notice of themselves and be present at the election.
Any election or voyces given before the precept be read and published, are void and of no force: for the same electors after the precept read and published may make a new election and alter their voyces, secundum legem & consuetudinem Parliamenti.
Thus much have we thought good to set down concerning Knights, Citizens, and Burgesses, because much time is spent in Parliament concerning the right of elections, &c. which might more profitably be imployed pro bono publico.
Now to treat more in particular (as it hath been much desired) of the lawes, customes, liberties and priviledges of this Court of Parliament (which are the very heartstrings of the Common-wealth, whereof we have remembered some: and you may see some. few other examples in the margent too long here to be | rehearsed) would take up a whole Volume of it selfe: certain it is, as hath been said, that Curia Parliamenti suis propriis legibus subsistit.
All the Justices of England and Barons of the Exchequer are assitants to the Lords to informe them of the Common law, and thereunto are called severally by Writ. Neither doth it belong to them (as hath been said) to judge of any law, custome, or priviledge of Parliament. And to say the truth, the lawes, customes, liberties, and priviledges of Parliament are better to be learned out of the Rols of Parliament, and other Records, and by presidents and continuall experience, then can be expressed by any one mans pen.
- Per varios actus legem experientia fecit.
- Multa multo exercitamentis facilius, quam regulis percipies.
Consultations in Parliament for maintenance of the Navie.
In many Parliaments consultations have been had for the maintenance of the Navie of England, and remedies provided against decay of the same: as taking one example for many. In the Parliament holden in Anno 45 Edw.3. the Commons amongst their petitions do affirme, that the decay of the Navy doth arise by three causes.The decay of the Navy. First, for that sundry mens ships are seised for the King, long before they serve, whereby the owners are driven at their charges to find their Mariners, to their undoing. Secondly, for that Merchants, the nourishers of the Navy, are oft restrained in their shipping, whereby Mariners are driven to seek other trades and livings. Thirdly, for that the Maisters of the Kings ships do take up Masters of other ships as good as their selves are, whereby the most of those ships do lye still, and the Mariners enforced to seek new livings: whereof they prayed remedy. To this petition of right the Kings royall answer was, That he would provide remedy.
The Kings Navy exceeds all others.The Kings Navy exceeds all others in the world for three things, viz. beauty, strength, and safety. For beauty, they are so many Royall Palaces: for strength (no part of the world having such Iron and Timber as England hath) so many moving Castles and Barbicans: And for safety, they are the most defensive wals of the Realm. Amongst the ships of other Nations, they are like Lions amongst silly Beasts, or Falcons amongst fearfull fowle.
In the reign of Queen Elizabeth(Ibeing then acquainted with this bussinesse there were 33 besides Pinnaces; which so garded and regarded the navigation of the Merchants, as they had safe vent for their commodities, and trade and traffick flourished. A worthy subject for Parliaments to take into consideration and to provide remedy as often as need shall require. For navigation, see Gen.6. 14. Sapient. 14. 6.Remp. quasi navem existimare debemus, quae omnium manibus officioq; indiget, &c. A leak in a ship is timely to be repaired: For as it is in the naturall body of Man, so it is in the politick body of the Common-wealth. Non morbus in plerisqe sed morbi neglecta curatio corpus interficit. And thus much for consultations in Parliament concerning the Navy of England.
See the first part of the Institutes. Sect. 164. verb. [Veigne les Burgesses al Parliament.] And there have been since the Conquest about 300 Sessions of Parliament whereof divers are not printed.Of the Burgesses of Parliament. About 300 sessions of parliament since the conquest.
In perusing over the Rols of Parliament we find First divers Acts of Parliament in print that are not of Record in the Roll of Parliament. Secondly, many acts of Parliament that be in the Rols of Parliament, and never yet printed. Thirdly, divers Clauses omitted in the print which are in the Parliament roll. Fourthly, more in the print then in the Record. Fifthly, many variances between the print and the Roll. Sixthly, Statutes repealed or disaffirmed, and yet printed, &c. Seventhly, whole Parliaments omitted out of the print. Eighthly, whole Parliaments repealed, or a great part.
And of every of these taking some examples; for to handle all at large would require a whole Treatise, which (we having broken the Ice) some good man and | lover of his countrey (we hope) will undertake to wade thorow.
To the first. De corrupto Judice.As to the first, These are in print, and not of Record. 20 Edw. 3. the oath of the Judges. 27 Edw. 3. cap.4, 5, 6, 7, 8. concerning the Alneger and Gascoigne Wines. 37 Edw. 3. cap.7. touching silver vessell. 37 Edw. 3. cap.19. of Hawkes 2 Ric. 2. cap.5. of Newes. Vid. 11 R.2. 11. 2 R.2. cap.3. of fained guifts 7 R.2. cap.15. against maintenance. 9 Ric.2. cap.3. of error and attaint. 11 Ric.2. cap.4, 5, & 6. not of Record. 13 Ric.2. cap.11. touching Clothes. 13 Ric.2. cap.19. concerning Salmons. 13 Ric.2. cap.2. touching Pilgrims. 13 Ric.2. cap.15. concerning the Kings Castles and Gaoles. 14 Ric.2. ca.7. concerning tinne 17 Ric.2. cap.8. of unlawfull Assemblies. 17 Ric.2. cap.9. concerning Salmons. 27 Hen. 6. cap.3. touching imployments, &c.
To the second.As to the second: These Acts of Parliament are of Record, and not in print. An.11 Edw. 3. the creation of the D. of Cornwall, &c. by authority of Parliament. 3. Ric. 2. nu. 39 concerning Justices of Peace, a profitable law for them. 8. Ric. 2. nu.31. concerning the jurisdiction of the Constable&Marshall. 20 R.2. concerning the legitimation of the children of John of Gaunt D. of Lanc. by Kath. Swinford. 5. Hen. 4. nu.24. a Commission or Act of Parliament for arraying & mustering of men. 8 Hen. 4. nu.12. Clergy exempted from arraying and mustering of men. 11 Hen. 4. nu.28. against Bribery and Brocage in great Officers Judges, &c. 11 Hen. 4. nu.63. concerning Attornies, &c. 6 Hen. 6. nu.27. that a Queen of England Dowager shall not contract her selfe or marry without the Kings license. 9 Hen. 6. nu.25. concerning fees of Privy Counsellors, and other head Officers. And very many others.
To the third.As to the third: In these Acts of Parliament divers clauses are omitted out of the print, which are in the Parliament Roll. 36 Edw. 3. cap.3. in the Act of Purveyors, &c. in the clause of the penalty, the Steward, Treasurer, and Controller are expressly named, but omitted in the print. 2 Ric. 2. stat.2. cap.4. in confirmation of liberties, &c. saving the Kings regality, is omitted. 13 Ric. 2. cap. 1. concerning presentations of the King, the last clause, concerning ratifications of the King, is omitted. 13 Ric. 2. cap. 2. touching provisions. 14 Ric. 2. cap.4. nu.9. concerning Regrators of wools, high prices omitted in the print. 17 Ric. 2. cap.4. of Malt, leaveth out Hertfordshire. 2 Hen. 5. cap.3. nu.38. concerning enquests. 2 Hen. 5. ca.1. nu. 30. concerning Justices of peace. 9 Hen. 4. cap.8. nu.43. concerning provisions. 8 Hen. 6. nu. 50. cap.10. concerning proces during the Kings will, omitted in the print.
To the fourth.As to the fourth: In these there is more in the print then in the Record, 9 Hen. 4. cap.9. nu. 43. touching provisions. 2 Hen. 5. stat.2. cap.3. nu.38. touching Jurors, &c.
To the fifth.The fifth: In these the print vary from the Record in some materiall thing. Generally in all the statutes made concerning provisions, or other the usurpations of the Pope, the biting and bitter words are left out in the print. As to take an examples or two. Vi. 38 Edw. 3. in print. cap.1, 2, 3, 4. and in the Roll, nu.9. &c. 3 Ric. 2.cap.3. in print. Rol, nu. 37. &c. the Bishops being Lord Chancellors. 9 Ric. 2. nu.1, the print mistake the beginning of the Parliament, viz. Monday after &. Luke, for Friday. 9 Hen. 4. cap.2. nu.26. concerning Attornies. &c. A Roll of Parliament intituled 14 Edw. 4. where it should be 13 Edw. 4. 9 Hen. 5.cap. 2 & 3. printed as perpetuall in some Books, where they were to endure but untill the next Parliament.
To the eighth.The eighth: whole Parliaments repealed and made void by subsequent Parliaments. 1 Hen. 4. cap.3. repealed. 21 Ric. 2. which hadrepealed the Parliament of 11 Ric. 2. and reviveth the same. By 39 Hen. 6. cap.1.a Parliament holden at Coventry Anno 38 Hen. 6. is wholly repealed. Rot. Par. 12 Edw. 4. nu. A whole Parliament holden Anno 49 Hen. 6. & readeptionis regni sui primo, is repealed and reversed.a Vide the Parliament of 15 Edw. 3. repealed. Rot. Parl. anno 17 Edw. 3. nu. 23. For there it is agreed that the statute of 15 Edw. 3. shall be utterly repealed, and lose the name of a statute, as contrarie to the laws and prerogative: and for that some Articles there made are reasonable, it is agreed, that such Articles and others agreed in this Parliament shall be made into a statute by the advice of the Justices.
b Histories sometime explaine Records of Parliament.bMany Records of Parliament can hardly be understood, unlesse you joyne thereunto the History of that time. For example: c The Cardinall of Winchester Uncle of the King, declareth in open Parliament, that he being in Flanders, in his journey to Rome, returned back of his own will to purge himselfe of a bruit that he should be a Traytor to the Realm, whereof (no accusation being against him) he was easily purged by the Duke of Gloc. Protector, by the Kings commandement. But adde the History thereunto, that the Cardinall having certain of the Kings Jewels in gage, meant to have them brought after him: but these Jewels being arrested and stay’d at Sandwich by the Kings commandement, and the bruit hereof coming to the Cardinals care (he being therewith exceedingly troubled) for the recovery of them, returned in post to the Parliament. Now after he was purged of the bruit of supposed treason; touching the said Jewels stayed at Sandwich to the great hindrance of the Cardinall, as he complained. It was on a motion on his behalfe, ordered that the Cardinall should pay to the King Six thousand pound more for them, and lend to the King thirteen thousand pound, which was done.This appeareth in the same Parliament nu 15.
And for a conclusion hereof, and of this Chapter of the High Court of Parliament, it is to be remembred that by the statute of 42 Edw. 3. cap.1. all Statutes are repealed that are against Magna Carta, or Carta de Foresta.
See hereafter cap. 75. how and in what manner Parliaments be holden in Scotland. And cap. 77. how and what manner Parliaments be holden in Ireland, and how Bils shall passe there, never before this time published, as we know.Parliament in Scotland. In Ireland.
See the first part of the Institutes, Sect. 164. for the ancient and latter names of Parliament, and the antiquity thereof. Modus tenendi, Parl. cap. 2.
*All the Bishopricks of England be of the Kings Progenitors incorporation, to have succession and foundation, Tenendum per comitatū seu baroniam and were of ancient time donative, and these Bishops are called by Writ to the Parliament as other Lords of Parliament be Rot. Claus. 9. Hen. 4. m. 1. Glanvil. lib. 7. ca. 1. vers finem, Bract. lib. 5. fo. 412. 427. a. 10 Hen. 4. 6. 21. Edw. 3. 60. 17. Edw. 3. 40. 48. 73. Dicetus Deane of London.
[Ed.: As a debt of justice; as a matter of right.]
a 5 Ric. 2. cap. 4. stat. ult. fo are they ranked. Prov. 11. 14. Salus ubi multa consilia. Rot. Parl. 7. Hen. 4. nu. 2. Multorum consilia requiruntur in magnis.
Fortescue cap. 18. fo. 40.
[Ed.: Because the statutes are made by the wisdom not of one experienced man, nor of a hundred only, but of more than three hundred elected men, the same sort of number as once ruled the Roman Senate.]
Cicero lib. 1. Epist. famil.
[Ed.: There were senators of the greater people, and senators of the lesser people, chosen from the patricians and nobles and from the people.]
Rot. Parl. 7 Hen. 5.
Rot. Parl. 50 Edw. 3. Bonum Parliamentum.
[Ed.: the good parliament.]
14 Hen. 8. 3. per Fineux Hollens. Chron. 34 Hen. 8. 956, 957. Dier 38 Hen. 8. 60, 61. 2 & 3 Edw. 6. ca. 36.
a 28 Edw. 3. ca. 6. Regist. 177. F. N. B. 164. k. PL. R. 212. Stanf Pl. Cor. 49.
[Ed.: by the common people of the same counties.]
b For this distinction, see the second part of the Institutes, Mag. Cart. Verb. [per pares.] fo. 29. a.
[Ed.: In witness whereof our seals are appended to these presents, both for ourself and for the whole commonalty of the aforesaid realm of England.]
[Ed.: Of the manner of holding parliament.]
Rot. Parl. 50 Edw. 3. nu. 8.
[Ed.: meeting of wise men, parliament.]
See the first part of the Institutes, Sect. 164. ubi supra.
a Breve Parliam.
b Brevia originalia de vasto, &c.
c W. 1. in exordio.
d Glanvil lib. 8. cap. 10. & lib. 13. cap. 32. Lib. 9. cap. 10. Bracton lib. 3. tract. 2. cap. 2.
[Ed.: Comitia (assembly), from coeundo (going together), because they go together there to deliberate concerning the hard and urgent business of the realm, and the defense of the realm, and matters concerning the English Church; common council of the realm; general council of the realm; council of the realm.]
[Ed.: general assize, [the word ‘assize’ coming from] assidendo (sitting down), as in the Assize of Clarendon, 22 Hen. i.]
[Ed.: Read through these [rolls], which are the clearest monuments of the councils of the realm, or else you will discover nothing but nonsense.]
e Aeneidos 10. conciliū Deorū.
[Ed.: Meanwhile there is thrown open the house of the almighty Olympus, and the father of the gods and king of men calls a council, etc. [Virgil, Aeneid, x. 1.]
[Ed.: in the life of Agricola.]
[Ed.: Conventus (meeting), from conveniendo (coming together).]
34 Hen. 6. 40. 2. Prisot.
[Ed.: King Eldred convoked the great men, bishops, peers, and nobles, to treat concerning the public business of the realm.]
[Ed.: Consessus (assembly) of senators, from considendo (sitting down together).]
1 Chron. ca. 28.
[Ed.: David called together all the princes of Israel, leaders, tribal chiefs, divisional commanders, centurions, and those who controlled the king’s property and possessions, and their sons, with eunuchs, and the mighty and most powerful men, in a great multitude, to Jerusalem.]
Actus activorum sunt in patiente disposito, saith the Philosopher.
[Ed.: Hear me, my brethren and my people, I have had it in mind to build a house in which might repose the ark of the covenant of the Lord, and for the footstool of our God, and I have made everything ready for the building, etc.]
b 2 Chron ca. 5. 2.
[Ed.: David assembled the greater men of Israel, and all the princes, tribal chiefs, and heads of the families of the children of Israel, in Jerusalem.]
c Judges 20. 11. Conventus.
[Ed.: The whole of Israel gathered at the city as if they were one man, and of one mind, and of one counsel, etc.]
[Ed.: The head, beginning, and end. (referring to the king, as head of parliament).]
[Ed.: the utmost of power.]
[Ed.: the utmost of wisdom.]
Rot. Parl. anno 3 Hen. 6. nu. 3.
[Ed.: common council.]
[Ed.: In the elephant, melancholy tends to the nourishment of the body.]
Virg. Georg. Illum non populi fasces, non purpura regum Flexit.
[Ed.: of the greatest strength and understanding.]
[Ed.: nevertheless they always go about in herds.]
[Ed.: animals which go in herds (or flocks) are not harmful, whereas animals which go alone are harmful.]
[Ed.: philanthropist, showing the way to the lost man.]
a Mich. 5 Edw. 1. in comuni banco. Rot. 100. Linc. Pasch. 19 Edw. 1. Rot. 145. Abbot de Selby. Pasch. 28 Edw. 1. Coram Rege Rot. between the King and Venables in Quare Impedit. Mich. 3 Edw. 2. Coram Rege Rot 6 and many others where the causes and reasons, pro & contra, have been set down, &c. 6 Edw. 3. fo. 5. per Herle. 3 Edw. 4. 2. b. 7. a. 19 Hen. 6. 63. a. Per Fray.
22 Edw. 4. 18 per Hussey. Rot. Par. 19 Edw. 1. Rot. 12. Margery Weylands case. Nota quia optime, &c.
[Ed.: by the advice of the council.]
Prov. 13 16. Sapiens omnia agit cum consilio. Vide infra. These writs of Summons you shall find in former times in the close Rol, for they are not in the Register, and in that Rol and the writs De expensis militum, civium & burgensium, & procuratorum cleri, and these are in the Register also.
Regist. 261. F. N. B. 229. a. ib. called Attendants.
[Ed.: that you be present with us and with others of our council (and sometimes ‘with us’ only) to treat upon the foregoing and give your counsel.]
[Ed.: that you be present with the prelates, magnates and peers to treat upon the said business and to give your counsel.]
[Ed.: Proctors of the clergy.]
Mod. Tenend. parl. ca. 2. Rot. Claus. 8 Edw. 2. m. 15. Dors. Ib. 5 Edw. 2 m. 15. Ib. 1 I Edw. 3 part I. m. 1. Ib. 22 Edw. 3. part 2. m. 3. Ib. 36 Edw. 3. m. 16. Rot. Par. 18 Edw. 3. nu. 1. 3 Ric. 2. 11 Ric. 2. 21 Ric. 2. Procuratores Cleri. Reg. 261a. F. N. B. 229. a. Procuratores de Clero. In fascicul. literarum procurat. &c. 13 Hen. 4. & 5. Hen. 5. See hereafter tit. Proxies.
[Ed.: Warning the dean and chapter of your church of Norwich, and the archdeacons and all the clergy of your diocese, that they the same dean and archdeacons in their own persons, and the said chapter by one suitable proctor, and the same clergy by two, having severally full and sufficient power from them the said chapter and clergy, that they be personally present at the aforesaid day and place to give assent to those things which shall then and there happen to be ordained by the common council of the said realm by the favour of God’s clemency:]
[Ed.: as above.]
[Ed.: by the common council of the realm.]
[Ed.: Of the manner of holding Parliament.]
[Ed.: when their presence is necessary.]
12 Edw. 3. bre 4. fo. 31 Edw. 3. bre 342. 32 Edw. 3. bre 291. 7 Hen. 6. 27. 21 Edw. 4. 15. For these regular Lords of Parliament, and when they ceased, see hereafter. pa. 7 Edw. 4. bre 163. 7 Hen. 6. 29. 11 Edw. 3. bre 473.
[Ed.: The king, etc., to the most reverend father in Christ, John, by the same grace archbishop of Canterbury.]
[Ed.: The king, etc., to the reverend father in Christ, John, bishop of Norwich, etc.]
[Ed.: The king to his beloved in Christ the abbot of St. Edmund’s of Bury, etc.]
[Ed.: in the faith and homage which you bear unto us.]
[Ed.: in the faith and allegiance.]
[Ed.: in the faith and homage.]
[Ed.: in the faith and love which you bear unto us.]
[Ed.: Master to John de Audeley, esquire.]
11 E. 3. tit. Bre 473.
[Ed.: all knights except John de Audeley, esquire, and John, Lord de Clynton.]
[Ed.: all knights except the Lord Scales.]
[Ed.: all knights.]
De Baneretto, & unde.
[Ed.: Baneriun (banner), whence banerius (banner-bearer), that is to say, a baron, or greater bannerbearer, and a banneret (a diminutive of banerius), a lesser banner-bearer.]
[Ed.: that is, the banner of a baron.]
22 Edw. 3. 18. tit. Challenge, 119.
[Ed.: Someone was challenged because he was a banneret, and it was not allowed; for if he is a banneret, and does not hold by a barony, he may serve on an assize.]
[Ed.: Note the sequence of time.]
[Ed.: in the open field of battle.]
Speed. See hereafter.
[Ed.: Statute dealing with the exacting of revenues.]
[Ed.: of the wardrobe accounts.]
[Ed.: In the issue of the pell, in the Exchequer, in 8 Edw. II. John of Cromwell, banneret. And in the wardrobe account, 9 Edw. II, Nicholas de Gray [was declared to be] of the king’s household as a banneret.]
Rot. Parl. 3. Hen. 6. nu. 1. Hen. 6. sat in Parliament when he was 3 or 4 years old, and so did he in the 6 and 8 yeare of his reign.
[Ed.: in distant parts.]
a Rot. pat. An. 24. Edw. 3. m. 18. The Patent of the Gardianship.
[Ed.: We, [wishing] that our peace be inviolably preserved as well in our absence as when we are present, and that common justice should be done to all plaintiffs in their actions and plaints, and being fully confident of the faithfulness of our beloved and faithful Edward, duke of Cornwall, and earl of Chester, our firstborn son, have constituted him guardian of our said realm and our lieutenant in the same realm so long as we remain in parts beyond the seas, or until we provide otherwise.]
[Ed.: The chief justiciary; the principal minister of state and guardian of the realm in the King’s absence.]
[Ed.: out of the realm.]
See Rot. Parl. 25 Edw. 3. nu. 10.
[Ed.: in the fifth of the fifth (i.e. the fifth [year] of [King Henry] the fifth).]
Rot. parl 5. Hen. 5. nu. 1.
[Ed.: to bear witness formally.]
8 Hen. 5. cap. 1. in. print. Nota, Quia in praesentia majoris cessat stas potestas minoris. And the Letters Patents of this office is with 2 quamdiu in partibus transmarinis moram fecerimus, &c. ut sup. Rot. Parl. 3. Edw. 4.
a Rot. 1. 13, 14. Like Letters Patents to the Earl of Warw. in the same Parliament. nu. 15.
Parl. 28 Eliz. See an excellent president hereof, Rot. claus. Anno 8 Edw. 2. 7. Sept. m. 26. & 1 pars pat. An 8. Edw. 2. m. 26. with a commandement of attendance. Simile 10 Edw. 2. a part pat. m. 20. 13 Edw. 3. nu. 1. stat. 2. in absentia gardiani Angliae.
[Ed.: to begin, etc. to hold, etc. and to proceed, etc. and to do all and singular the things, etc. and not adjourn and prorogue the parliament, etc.]
[Ed.: word for word]
[Ed.: the lady queen is represented by the commissioners, namely, etc.]
22 Edw. 3. Sir William Thorpe chiefe Justice.
a 17 Edw. 3. nu. 7,8, Sir Bart de Burgherst 25 Edw. 3 nu. 1. 6. 27 Edw. 3. nu. 2. 28. Edw. 3. nu. 1. 29 Edw. 3. nu. 1. Sir William Sharshull Chiefe Just. 45 Edw. 3. nu. 8. Sir Robert Thorpe Chiefe Justice 47 Edw. 3. nu. 2. Sir Jo. Knivet Chief Justice. 50 Edw. 3. nu. 2. Sir Jo. Knivet chiefe Justice, 51. Edw. 3. nu. 13. by Sir Robert Ashton the Kings Chamberlain.
[Ed.: permission to elect [a bishop].]
Sicknesse cause to remove the Speaker. 1 Hen. 4. nu. 62. 63. Rot. Parl. 1 Hen. 5. nu. 9,10,11. Rot. Parl. 15 Hen. 6 nu. 10. & 27.
Sickness no cause to remove a Member of the Commons. 38 Hen. 8. Parl. Br. 7.
The King may allow of his excuse, and disallow him, as Sir John Pophan was. 28 Hen. 6. nu. 6.
Rot. Par. 1. Ric. 1. nu. 15. &c. Rot. Parl. 2. Hen. 4. nu. 8. Sir Arnold Savage Speaker. 5 Hen. 4. nu. 8. 7 Hen. 4. nu. 11. Sir Jo. Tibetost speaker. & ibid. nu. 30. 1 Hen. 5. nu. 7. 2 Hen. 5. nu. 10. And so in succeeding times called a Protestation.
Rot. Parl 9 Hen. 4. An Act intituled Indemnitie des Seigniors, et Commons, not printed.
See West 1. Anno 3 Edw. 1. in the preamble, the state of the Realme & of holy Church. And the 2 part of the Institutes, West 1. cap. 1. and in the preamble.
[Ed.: for certain hard and urgent business concerning us, the state and defence of our kingdom, and the English Church, we have ordered our parliament, etc. to be held, etc.]
a 36 Edw. 3. 50 Edw. 3. &c.
36 Edw. 3. cap. 10. Parliaments ought to be holden once in a year.
4 Edw. 3. cap. 14. Inter leg. Edgar cap. 5.
[Ed.: The most celebrated [king] twice every year convened a meeting of every satrap.]
Tacitus in vita Agricolae, pag. 306.
[Ed.: Note, the common council, the assembly.]
[Ed.: Nor indeed have we anything more useful against the strongest peoples than that they do not collaborate with each other. Rarely will they meet to repulse a common danger; and therefore, when they fight separately, they are all conquered. Tacitus, Agricola, xii. 2.].
4 Hen. 8. c. 8.
The like Writ to all the other Counties, saving in Wales they have but one Knight and one Burgesse.
And every City two Citizens, and out of every Burgh two Burgesses.
[Ed.: Note, concerning the aforementioned matters.]
[Ed.: The king to the sheriff of Norfolk, greeting. Because we, by the advice and assent of our council, for certain arduous and urgent causes concerning us, the state and defence of our realm of England, and the English Church, have ordered a certain parliament to be held at, etc., there to discuss and treat with the prelates, magnates and peers of our said realm, we command you the said sheriff of Norfolk, with firm injunction, that, having made proclamation in your next county meeting after the receipt of the same writ, you cause to be elected, etc. two knights girt with swords, etc., to do and to consent to those things that with God’s favour should then and there happen to be ordained by our common council of England upon the aforementioned business, so that our said business should in no way remain undone for want of such power or because of the careless election of the knights, citizens and burgesses aforesaid.
Bract. l. 5. f. 413. Britton 122. 227. Fleta li. 2. ca. 12. West 2. ca. 25. 1. pt of the Inst. Sect. 101. Epist. ad librum.
[Ed.: by far the stronger reason.]
c 7 Hen. 4. ca. 15. Rot. par. 5. Ric. 2. nu 1. 2. &c. they be now returned in to the Chancery, and kept in the office of the Clerk of the Crown there.
d 23 Hen. 6. ca. 15.
[Ed.: two knights girt with swords, etc.]
Parl. 6 Hen. 4. This was called Indoctum Parliamentum, lack-learning Parliament.
Rot. Parl. 46 Edw. 3. nu. 13. 5 Ric. 2. c. 4. 7 Hen. 4. ca. 15. See hereafter more of this matter, in this chapt. pa. and who be eligible, &c.
Nota. West 1. ca. 5. 3 Edw. 1.
[Ed.: that is, without prayer.]
[Ed.: and without command.]
*Gascoign, Guyan, Poiters, Normandy, Anjou, &c.
[Ed.: Outside parliament no petition is acceptable, even if it is necessary; in parliament no petition is unacceptable if it is necessary.]
a Ro. Par. 18. Edw. I. fo. 3. & 16. 50 Edw. 3. nu. 125. 66. 81. 17 Edw. 3. nu. 55,56. 36 Edw. 3. nu. 25. 43 E. 3. nu. 19. 45 Edw. 3. nu. 33. 47 Edw. 3. nu. 16. 1 Ric. 2. nu. 132. &c.
b Ro. Par. 17 Edw. 3. nu. 60. 25 Edw. 3. nu. 60. 50 Edw. 3. 212. 1 Ric. 2. 134. &c. 2 Ric. 2. nu. 38. 1 Hen. 4. 132. 2. Hen. 4. 3. 25. 3 Hen. 4. 113. 23 Edw. 3. nu. 42. 25 Edw. 3. nu. 12. 36 Edw. 3. nu. 31. 50 Edw. 3. nu. 52.
[Ed.: Of the manner of holding parliament, etc.]
e Bracton. Gravius est aeternam quam temporalem laedere majestatem. And it appeareth by the statute of 36 Edw. 3. cap. 10. That it is one of the principall ends of the Parliament to redresse grievances. And the words of the Writ of Parliament be, De arduis & urgentibus negotiis statum & defensionem Ecclesiae Anglicanae concernentibus.
21 Edw. 4. 50. The ancient Record, De modo tenend’ Parl. &c. vers. finem, optime.
See the Second part of the Inst. Mag. Carta ca. 2. pag. 7,8. See the first part of the Institutes Sect. 164. fo. 110. See the 2. part Inst. pa. 8. the Charter of King Hen. 1. at his Coronation having relation to Modus tenendi Parl. See also the Charter of King John anno 17. Math. Par. 246. per antiquum relevium, viz. haeres comitis pro comite integro 100 l. haeres Baronis pro Baronia integra 100 mart. & haeres militis de feodo militis integro. 5. l. See Mag. Cart. cap. 2.
[Ed.: Concerning the assent of John Talbot, knight.]
It is justly called antiquum relevium, because it is according to the proportion of this ancient Modus.
[Ed.: Who has disparaged him? To which no answer was made.]
At the Parliament holden An. I Eliz.
[Ed.: Giving them jointly and severally power to treat, and to give assistance and counsel to the discussions, and to consent to the statutes and ordinances which happen to be enacted, provided that they should not be in a better position than the occupant.]
[Ed.: one by one.]
[Ed.: with strong reason,]
Lib. Sap 17. 13. Mat. Par. pa. 233.
[Ed.: his most secret messengers.]
[Ed.: with the common counsel of the barons.]
[Ed.: the golden bull.]
Rot. Cl. An. 3. Edw. 1. m. 9. in Schedula.
[Ed.: Pope Gregory by a letter asked King Edward I for an annual payment of one thousand marks. The king answered that he could not answer without the prelates and peers of the realm, and that he was constrained by his coronation oath that he would preserve the rights of his kingdom intact, and that he would not do anything which touched the crown of the same realm without seeking their counsel.]
Rot. Par. 40 E. 3. nu. 8. An Act never yet printed.
I have thought good to transcribe it in proprio Idiomate.
No King can put himself nor his Realm, nor his people, in such subjection without assent of the Lords and Commons in Parliament, and therefore if K. John had done it by the Common Councell of his Barons as his Charter purported, yet it bound not, for that it was not done in Parliament by the King, the Lords and Commons: and albeit it might (as here it appeareth, it cannot be done without Authority of Parliament) yet it is contra legem & consuetudinem Parliamenti, to doe such a thing as by the next Record in 42 Edw. 3. appeareth.
[Ed.: It was shown to the prelates, dukes, earls, barons, knights of the shires, citizens, and burgesses, in the king’s presence, by the chancellor, that they had heard the causes of the summons of the parliament in general, but it was the king’s wish that the causes should be shown to them in detail; and he told them that the king had understood that the pope, by virtue of a deed which the said King John had made to the pope to do him homage for the kingdom of England and the land of Ireland, and by reason of the said homage to pay him a thousand marks every year for ever, is about to proceed against the king and his realm to recover the said service; and concerning this the king asked the said prelates, dukes, earls and barons their advice and good counsel, and what he should do in case the pope should proceed against him or his said realm for this cause; and the prelates requested the king that they might discuss it among themselves and answer the next day; and the next day the same prelates by themselves, and later the others, dukes, earls, barons, and people, answered and said that neither the said King John nor any other could put himself, or his realm, or his people, in such subjection without their consent and agreement; and the commons, being thereupon asked and advised, answered in the same way; whereupon it was ordained and assented by the common assent in the following manner. In this present parliament held at Westminster on the Monday next after the Invention of the Holy Cross in the fortieth year of the reign of King Edward, both upon the estate of Holy Church and to maintain the rights of his realm and of his crown, amongst other things it was shown that it had been spoken and stated that the pope was minded, by virtue of a deed which he said that King John, late king of England, made to the pope to do him homage in perpetuity for the kingdom of England and the land of Ireland, and by reason of the said homage to render unto him an annual rent, to proceed against the king to recover the said services, and this having been shown to the prelates, dukes, earls, barons, and the commons, to have their advice and good counsel therein, and it being asked of them what the king should do in case the pope would proceed or attempt anything against him or his realm for that cause, the same prelates, dukes, earls, barons and commons, having had full deliberation thereof, answered and said with one accord that neither the said King John nor any other could put himself, or his realm, or his people, in such subjection without their consent and agreement, and it appeared by various evidences that if this had been done it had been done without their consent, and against his coronation oath. Moreover the dukes, earls, barons, people and commonsagreedandgranted that in case the pope would enforce this or attempt anything by process or in any other way to cause the king or his subjects to do what he said he would claim in that behalf, they would resist and withstand it with all their power.]
7 Edw. 2. Stat. De defensione port and arma. 2 Edw. 3. ca. 3. Rot. Par 6. Edw. 3. nu. 1. 13 Edw. 3. nu. 2. 14 Edw. 3. nu 2. 15 Edw. 3. nu 2. 17 Edw. 3. nu. 3. 18 Edw. 3. nu. 2. 20 Edw. 3. nu. 1. 25 Edw. 3. slat. 1. nu. 58. 25 Edw. 3. stat 2 nu. 5. &c. Privy coat or Armour. Games or plays. Rot. Par. Ann. 13 Edw. 3. nu. 5. & 8.
[Ed.: to do and to consent to those things that with God’s favour should then and there happen to be ordained by our common council of England upon the aforementioned business (that is, for certain arduous and urgent causes concerning us, the state and defence of our realm of England, and the English Church).]
[Ed.: word for word. Literally, from word to word.]
Pasch. 3. Edw. 3 coram Rege Rot. 9. in Dors. Southr.
The Plea of the Bishop to the jurisdiction of the Court.
[Ed.: John, bishop of Winchester, in mercy for various defaults. The same Bishop John wasattached to answer the lord king for that, whereas in the king’s parliament lately held at New Sarum it was ordered by the selfsame lord king that no one summoned to the said parliament should leave the same without the king’s licence: the same bishop, during the aforesaid parliament, left the same without the king’s licence, in manifest contempt of the king, and against the above-mentioned prohibition by the king. And thereupon the same lord king, by Adam de Fincham, who sues for him, says that the aforesaid Bishop John committed the aforesaid trespass and contempt against him, etc. in contempt of the king [to the extent of] onethousand pounds. And this he offers to aver for the lord king, etc.
And the aforesaid bishop comes in his own person, and denies all the contempt and trespass, and whatever, etc., and says that he is one of the peers of the realm and a prelate of Holy Church, and it behooves him to come to the lord king’s parliament by summons and at the will of the lord king whenever he pleases. And he says that if any of them offends against the lord king in any way in parliament, it ought to be corrected and amended in parliament and not elsewhere in a lesser court than parliament; and so he does not think that the lord king will be answered in this court for such trespass and contempt made in parliament, etc. Thereupon a day is given to them before the king in fifteen days from the day of the Holy Trinity, wheresoever (he should then be in England), etc., saving their arguments. At which day the aforesaid bishop comes in his own person, and he is given a day before the lord king in fifteen days from Michaelmas, wheresoever (he should then be in England), etc., in the same condition as now, etc., saving his arguments, etc. At which day come the aforesaid Adam, who sues (for the lord king), etc., and likewise the aforesaid bishop in his own person. And the aforesaid Adam, for the lord king, says that when it pleases him to hold his parliament for the utility of the realm, he causes it by his royal power to be summoned where and when, etc. at his will, and also causes it to be prohibited to those then at the parliament that none of them should leave contrary to his prohibition, etc., without licence, etc., and if any of them leave contrary to the prohibition, etc. in contempt of the king, etc. it is perfectly permissible for the lord king to commence suit against such offenders in whatever court he pleases, etc. And since the lord king holds his parliaments at his will, etc., he prays judgment for him the said lord king, whether the same lord king ought to be led or compelled to sue in this behalf elsewhere, against his will, etc.
And the aforesaid bishop says, as before, that when anyone offends in parliament, it ought tobecorrected and amended there, etc., and even if someone is summoned to come to parliament and does not come there, he ought to be punished, and so he does not think that the lord king will be answered anywhere other than in parliament, etc. Thereupon a day is given them until the morrow of All Souls wheresoever (the king should then be in England), etc., in the same condition as now, etc. At which day come both the aforesaid Adam, who sues for the lord king, and the aforesaid bishop in his own person. And they are given a day before the lord king in the octaves of St. Hilary, wheresoever (he should then be in England), etc., saving their arguments, etc. At which day the aforesaid bishop comes, and he is given a further day before the lord king in the octaves of the Purification of the Blessed Mary, wheresoever (he should then be in England), etc. At which day come both the aforesaid bishop and John of Lincoln, who sues for the lord king, and they are given a further day before the lord king in five weeks from Easter day, wheresoever (the king should then be in England), etc., saving their arguments, etc. At which day come both the aforesaid bishop and John of Lincoln, who sues for the lord king, and they are given a further day before the lord king in fifteen days from Michaelmas day, wheresoever (the king should then be in England), etc., saving to themselves their arguments to be published, etc.]
[Ed.: Those who are judges of parliament are judges of their peers, but the king has no peer in his own land, and therefore he cannot be adjudged by them, and therefore he cannot be adjudged anywhere else but here.]
[Ed.: for vexing redemption.]
Mich. 3. & 4 Ph. & Mar. Rot. 36. inter Plac. Regis & Reginae.
[Ed.: without day by the demise of the queen, in other words, without a fixed day of termination specified in the royal grant.]
Mic. 3 & 4 Ph. & Mar. Ro. 36. inter plac. regis & reginae.
Per de annis 1 & 2 Ph. & Mar. Rot. 48.
Cess. process. vers. Georgium Lye. Sine die per demise le Royne.
Per cont’ rott’ de Annis 1 & 2 Ph. & Mar. Rot. 48.
[Ed.: Middlesex. Be it remembered that Edward Griffin, esquire, attorney-general of the lord king and [lady] queen, who sues for the same lord king and lady queen, comes here in the court of the said king and lady queen before them the said king and queen at Westminster on the Saturday next after the quindene of Easter this same term, and gives the court here to understand and to be informed that, whereas at the parliament of the lord king and lady queen held at Westminster in the first and second years of their reign it was commanded by them the said lord king and lady queen in the same parliament that no one who had been summoned to the same parliament and was there present should leave the same parliament without the special licence of the said lord king and lady queen and of the court of parliament aforesaid, or absent himself in any other way: nevertheless a certain Thomas Denton of [blank ] in the county of Oxford, esquire, . . . [thirty-nine other members listed, including Edmund Plowden ], who were summoned to the said parliament, and appeared in the same parliament, and were there present, little regarding the above-mentioned command and prohibition of the lord king and lady queen, and little caring for or weighing the state of the commonwealth of this realm of England, afterwards, namely on the twelfth day of January in the first and second year of the reigns of the said lord king and lady queen, and during the aforesaid parliament, contemptuously left the same parliament without the licence of the said lord king and lady queen and of their aforesaid court, in manifest contempt of them the said lord king and lady queen and of their aforesaid command and prohibition and of the aforesaid court, and to the great detriment of the state of the commonwealth of this realm of England, and to the pernicious example of others, etc. And thereupon the same attorney of the lord king and lady queen prayed the advice of the court in the foregoing and due process of law to be made out against the same Thomas Denton . . . [and other members ], to answer the lord king and lady queen in respect of the aforesaid contempt, etc.
And now, namely on the Friday next after the morrow of All Souls this same term, before the lord king and lady queen at Westminster, comes the aforesaid Edmund Plowden, by Andrew Tusser his attorney; and, having had a hearing of the aforesaid information, he says that he does not think that the present lord king and lady queen will wish or ought to impeach or charge him the said Edmund for the foregoing matters or any of them; because he says that he was present at the said parliament specified in the aforesaid information, and remained continuously in the same parliament, that is to say, from the beginning of the selfsame parliament until the end of the same, without this that he the said Edmund Plowden on the said twelfth day of January in the above-mentioned first and second year, during the aforesaid parliament, contemptuously left the same parliament without the licence of the said lord king and lady queen and of their aforesaid court in manifest contempt of them the said lord king and lady queen and of their aforesaid command and prohibition and of the aforesaid court, and to the great detriment of the state of the commonwealth of this realm of England, nor to the pernicious example of others, etc., in the manner and form as is supposed against him by the aforesaid information. And this he is ready to aver as the court, etc. And so he prays judgment, and that he may be dismissed from the foregoing by the court here, etc.
...[process against the other members, some of which is stopped by order of the attorney-general ]...
And afterwards, namely in Trinity term in the fourth and fifth years of Philip and Mary, forasmuch as it is sufficiently attested here in court that the aforesaid John Harford had licence to leave the parliament, etc., therefore Edward Griffin, esquire, attorney-general of the lord king and lady queen, who sues for them the said king and queen in this behalf, says that he does not wish to sue further in this behalf against the said John Harford. Therefore let the process here utterly cease against him, etc.]
[Ed.: in those days,]
[Ed.: From or as a debt of justice; as a matter of right. The opposite of ex gratia.]
[Ed.: Before the king.]
[Ed.: let justice be done. On a petition to the king for his warrant to bring a writ of error in parliament, he writes on the top of the petition, “Fiat justitia,” and then the writ of error is made out, etc. . . .]
[Ed.: in the present parliament.]
22 Edw. 3 fo. 3. Regist. 17. Lib. Intr. Rast. 284.
[Ed.: Writ to enforce a judgment or other manner of record.]
[Ed.: upon the tenor of the record, and not upon the record.]
[Ed.: according to the law and custom of parliament.]
Rot. Par. Post festum Sancti Hil. Anno 18 Edw. I. Rot. 8.
[Ed.: William de Valence complains against the king’s council, that is, the justices before the king, for an unjust judgment touching the allowance of Denise, daughter of William de Montchensy, as heir; but the lord king confirms what they have done, and judgment is given against William de Valence.]
Rot. Par. 4. E. 3. nu. 13. Rich. Earl of Arundels case. lb. 28 E. 3. nu. 11, 12. Mortimer Earl of Marches case. See Pasc. 28 Edw. 3. Coram Rege Rot. 37 Wigorn, the same case. 33 Hen. 8. ca. 20. 29 Eliz. ca. 2. Rot. Par. 7 Ric. 2. nu. 20. 8 Ric. 2. nu. 14.
Rot Par. 13. Ric. 2. nu. 15. Sir Thomas Methams case.
Rot. Par. 10 Edw. 3. nu. 48.
a Ro. Par. 15 Ric. 2. nu. 2.; & 18 Ric. 2. nu. 2; & 18 Ric. 2. nu. 11, 12, 13, 14, 15. This Parliam. of 18 Ric. 2. is not mentioned in the printed book, because no Act passed at this Parliament. See 2 Hen. 4. nu. 40.
b Ro. Part. 15 Ric. 2. nu. 22.
c 21 R. 2. nu. 25. 2 Hen. 4. nu. 13.
d Rot. Par. 1. Hen. 4. nu 91.
[Ed.: A real action to recover a presentation, a patron’s right to an advowson or benefice.]
Rot. Par. 15 Ric. 2. nu. 24. & 2 Hen. 4. nu. 38.
5 Hen. 4. nu. 40.
Rot. Par. 3. Hen. 5. nu 19.
Rot. Par. 10 Hen. 6. nu. 51. & 11 Hen. 6. nu. 40.
Rot. Par. 31 Hen. 6.
[Ed.: and it is entered in the margin, [This] roll is sent into parliament by John Fortescue [chief justice], in Easter term in the thirty-first year of Henry VI.]
Rot. Par. 23 El. Dier 23 El. f. 373.
Rot. Par. 12 Jac.
[Ed.: but he did not prevail.]
Vide Placita in Parliam. Anno 33 Edw. 1. Rot. 33. Nicholaus Segrave adjudge praelatos, Comites, Barones & alios de concilio. At the Parliament at York anno 12 Edw. 2. Consideratum est per Praelatos, Comites, Barones, & Communitatem Angliae the Lord Awdeleys case. At the Parl. at Westm’ 15 Edw. 2. Hugh le pier adjudge per les seignours & Commons. Rot. Parl. 42 Edw. 3. nu. 20. Sir John at Lee adjudged by the Lords and Commons. Rot. Pat. 50 Edw. 3. 2. parte, A Pardon to the Lord Latimer of a Judgment in Parliament. Rot. Parl. 50 Edw. 3. nu. 34. Lo. Nevils case.
[Ed.: To the most wise king’s council, the lord and commons, etc.]
In the book of the house of Comons at the Parliament holden 8 Eliz. Ownsloe Speker. fo. 19.
[Ed.: According to the law and custom of parliament.]
23 Eliz. ib. fo. 14. Popham Attorney generall Speaker.
Ib. 2 Aprilis. 1 Mariae. Vid. 11 Hen. 6 c. 11 5 Hen. 4. ca. 6.
See Rot. Parl. 8 Hen. 6. nu. 57.
Vide Inter leges Edw. Confess C. 3.
Petitiones coram domino rege ad Parliament’ post festum Sancti Mich. Anno 18 Edw. 1. fo. 7.
[Ed.: The master of the knights of the Temple prays that he may distrain the chattels of one of council, in time of parliament, for the rent of a house in London. The king answers that it does not seem appropriate that those of his council should be distrained in time of parliament, but at some other time, etc.]
Plac’ coram rege & ejus concilio ad Parliam. suum post Festum Sancti Hil. Anno 18 Edw. 1. fol. 1. Vide Inf. 10 Edw. 3. more hereof concerning serving of a Citation.
[Ed.: The complaint of the earl of Cornwall against Bogo de Clare and the prior of the Holy Trinity, London, that they in time of parliament cited him the said earl in the middle of Westminster Hall, by the procurement of the said Bogo, to appear before the archbishop of Canterbury, etc. The prior comes, and Bogo likewise, and they put themselves in the grace, mercy and will of the king, of high and low; and by reason thereof they were sent to the Tower of London. Later the said Bogo comes and makes fine with the lord king for the aforesaid trespass, at two thousand marks, etc., and, with respect to the aforesaid earl, let him answer the earl in one thousand pounds of the trespass done to him, etc. And the aforesaid prior is sent there to do whatever the treasurer tells him to do on behalf of the lord king.]
Rot. Parliam. Anno 8 Edw. 2. in Dors. cl. 8 Edw. 2.
[Ed.: The king has commanded his justices assigned to take assizes, juries, etc., that they should stay the taking of the same where the earls, barons, and others summoned to the king’s parliament are parties, so long as the said parliament shall last.]
Ibid. m. 33 & 22.
[Ed.: Concerning the not proceeding to take assizes against those who come to the king’s parliament at York.]
In Scacc’ ex Originali de Anno 10 Edw. 3. Ro. 27. No.
That is, in Court of Parliament.
Citationes. This John de Thoresby was the Clerk of the Parliament.
[Ed.: The king to all his bailiffs and faithful subjects to whom (these presents shall come), etc., greeting. Know ye that, whereas our courts in which the business of our realm is transacted, wherever they are, are free and exempt, and since time immemorial have been free and exempt, so that neither matters concerning the ecclesiastical jurisdiction should be done or executed in our same courts nor ought anyone to enter the same courts in order to do or execute anything concerning the ecclesiastical jurisdiction, nor have they been accustomed to do so in times past; and whereas Master Henry de Harwedon, clerk, Edmund de Lukenore, and John de Wedlingburgh, have been convicted by the inquest on which they put themselves in our court before our beloved chancellor and others of our council, for that they lately in our Chancery, in the presence of the venerable father John, archbishop of Canterbury, our chancellor, made out certain citations or monitions to our beloved clerk John de Thoresby, and also provocations, appeals and public instruments upon the aforesaid citations and monitions, in contempt of us and our crown and in prejudice of our royal dignity, and against the liberty and exemption aforesaid, and for that reason have been committed to our prison therein to await our pleasure: We, of our especial grace, at the request of Philippa, queen of England, our most beloved consort, have pardoned the same Henry, Edmund, and John the aforesaid imprisonment; provided nevertheless that they satisfy us of their ransom by reason of the fore going, and that they make no other process upon the citations, monitions, provocations, appeals or instruments aforesaid, so made in our said Chancery, nor henceforth in any way attempt or cause to be attempted anything which might tend to the prejudice of us or the right of our crown. In witness, etc. Witness the king at the Tower of London on the fifteenth day of April. From the original of the tenth year of Edward III, roll 27.]
Rot. Parl. Anno 17 Edw. 4. nu. 36. Vid. 21 Edw. 4. fol. 38, 39. Rot. Parl. Anno 8. Hen. 6. nu. 57. Vide infra. pa.
a Vid. 14 Ric. 2 nu. 15. & 13 Hen. 4. nu. 25.
b 4 Hen. 7. 18. b. p tours les Justices. 7 Hen. 7. 14 & 16. 11 Hen. 7. 27. 2. Brook prerogative 134. Fortescue fo. 20. cap. 18. Dier 1 Mar. 92.
c Rot. Parl. 25 Edw. 3. nu. 16, &c. 39 Edw. 3. 12. 22 Edw. 3. 3. 8 Hen. 6. cap. 29. Dier 4 Mar. 144. 39 Edw. 3. 7. Thorp male erravit. Rot. Parl. 37 Edw. 3. nu. 39. 1 Ric. 2. nu. 56. diversity between Acts of Parliament and Ordinance. 2 R 2. stat. 2. nu 28.
d 13 Hen. 4. nu. 20.
e Repeal 1 Edw. 3. cap. 2. stat. 1. 15 Edw. 3. tit. petition. Edw. 2. See Rot. Pat. An. 1 H. 4. part 5. m. 36. the Isle of Man given to the king by the Lords Temporall and Commons.
f Repeal. 1 H. 4. cap. 3.
33 H. 6. fol 17.
Dier. 3 Mar. 131. lib. 8. fo. 1. the Princes case. Concerning the ingrossing in Rols of Acts of parliament. Rot. Parl. 7 Hen. 4. nu. 65.
John Moore. Printing was invented in Meath in Germany, Anno Domini 1441. and came to us in the raign of Hen. 6. See Bodin De Methodo historiae. li. 7. Una typographia cum omnibus omnium veterum inventis certare facile potest. Polydor Virgil de invent. rerum lib. 2. cap. 7. Cardan. de varietate rerum lib. 3. cap. 64.
At the Parliament in Anno 10 Edw. 3.
[Ed.: Edward, by the grace of God, king of England and France, and lord of Ireland, to the sheriff of Norfolk, greeting. We have ordained and established certain statues, as follows, [made] by us, the prelates, earls, barons and other great men at our parliament held at York on the morrow of the Ascension last past . . .]
[Ed.: And therefore we command you that you cause those statutes, and all the articles contained in the same, to be publicly proclaimed in every place within your bailiwick, both within liberties and without, where you shall think fit, and to be firmly held and kept. Witness, etc.]
[Ed.: Richard, by the grace of God king of England and of France, and lord of Ireland, to our sheriff of Norfolk, greeting. Know ye that to the honour of God and reverence of Holy Church, and to nurture peace, unity and concord in all parts within our realm, which we very earnestly desire, with the assent of the prelates, dukes, earls and barons of our realm assembled at our parliament held at Westminster in the quindene of Michaelmas in the first year of our reign, we have caused to be ordained and established certain statutes in amendment and relief of our same realm, in the following form. Firstly it is assented and established that Holy Church shall have and enjoy all her rights, etc.]
[Ed.: And therefore we command you to cause all the statutes to be proclaimed and published, and firmly kept, throughout your bailiwick, according to the form and tenor thereof; and do not in any way fail to do this. Given by witness of our great seal at Westminster on the first day of February in the first year of our reign.]
Rot. Parl. 14 Edw. 3. Stat. primo. nu 7, 8, 9, &c.
Rot. Parl. 3 Ric. 2. nu. 8. &c.
[Ed.: the crime of lese-majesty, or injuring majesty or royalty; high treason.]
Rot. Parl. 7 Hen. 4. nu. 29. &c.
Rot. Parl. 2 Hen. 7. nu. 1 Hen. 7. fo. 4. b.
*Rot. Par. 33 Hen. 8 begun the 16 day of January, and continued till the first of April following. On the 12 of February the Queen was beheaded in the Tower, sitting the Parliament. Prorogo, à porro & rogo, unde prorogatio. Adjourner, unde adjournare, & adjournamentum, est ad diem dicere, or diem dare. Rot. Parl. 23 Hen. 8. 24 Hen. 8. nu. 1. 25 Hen 8. nu. 1. 26 Hen. 8. nu. 1. 27 Hen. 8. nu. 1 &c. 2 & 3 E. 6. nu 1. 3 & 4 Edw. 6. nu. 1. &c. 1 Mariae Sess. 2. 28. Eliz. nu. 1. &c. And in every of them it is said [and there continued until such a day;] and yet in them divers adjournments were. See the Journall Book in the Lords House. Ultimo Junii 14 Eliz. Custos Magni Sigilli ex mandato Dominae Reginae adjournavit praesens Parliament’ usq; in festum omnium. Sanctorum. And in the Parliament in Anno 39 Eliz. Custos magni Sigilli ex mandato Dominae Reginae (the Queen being absent.)
[Ed.: at the session held, etc. by prorogation.]
Rot. Parl. 18. Ric. 2. which began 15 Hilarii.
[Ed.: For nothing is so consonant with natural equity as that everything should be untied with the same bond by which it has been tied.]
33 Hen. 8. ca. 21. Royall assent by Letters Patents. Dier. 1 Mar. 93. Commission au 4 seigniors, &c. a doner royall assent & indorcement sait. Soit sait come est desire.
[Ed.: Common dangers require common aids.]
Ph. Cominaeus, Lib. 5. fo. 233.
[Ed.: The kings of England take nothing of this kind except after calling together those of the first rank, and with the assent of the people. This custom seems to me very praiseworthy; for with the will and assent of the people the authority and power of the king grow strong, and his authority is the greater, and his progresses more happy.]
[Ed.: Reports of Ancient or great customs duties on wool, sheepskin, or wool pelts, and leather.]
[Ed.: (literally, “small and new customs”). Imports of 3. d in the pound due formerly in England from merchant strangers only, for all commodities imported and exported.]
See hereafter, c. 11. Verb. de nous Customes, &c. Rot. sinium Au. 3 Edw. 1. Rot. Pa. 3 Edw. 1. m. 1. dat. 10 Novemb, which was in the end of the year, for he began his reign 17 Nov. Confirmat. Cartarum Vet. Mag. Cart. 2. parte fo. 36. a.
[Ed.: The prelates, magnates, and whole community, have granted us a certain new custom of wools, fells and leather, [. . .] half a mark, of three hundred fells half a mark, and of a last of leather one mark.]
[Ed.: Confirmations of the charters in the year 25 Edw. I.]
[Ed.: Saving to us, and our heirs, the custom of wools, fells and leather granted by the commonalty of the realm.]
Int. brevia de Term Mich. 26 Edw. 1. In offiremem. regis.
[Ed.: Saving nevertheless to us and our heirs the customs of wool, fells, and leather first granted to us by the commnalty of our said realm.]
a 12 Hen. 4. nu. 45. 6 Hen. 6. nu. 11. 12 and. 4. ca. 3. 7. Edw. 4. nu. 30. 1 Edw. 6. ca. 13. 1 Marr. cap. 18. 1 Eliz. ca. 19. & 3 Jac. Regis accord.
[Ed.: granted to us by the commonalty of England.]
[Ed.: The small and new custom.]
i. Tributum seu vestigal. Rot. Cart. 31 Edw. 1. nu. 44. called Carta mercatoria. This was questioned Rot. ordinat. Anno 5 Edw. 2. but allowed of in Parliament, Anno 1 Edw. 3. 9 ca. 1. 27. Edw. 3. Stat. Stap. ca. 26. F. N. B. 227. d. 259. a.
[Ed.: above the ancient custom as first granted.]
1 El. Dier 165.
[Ed.: See among the Originalia rolls of the Exchequer.]
Int. Orig. de Scaccario. 10. 24 Edw. 3. Rot 13. ib. 27 Edw. 3. Rot 4. See the Second part of the Institutes, Mag. Cart. cap. 30. p. 60. By 27 Edw. 3. stat. 1. & ca. 4 Custome of Cloth.
[Ed.: Because now the great part of the wool of our realm is made into cloth within the same realm, whereof no custom is now paid, so that the profit that we ought to receive from the customs and subsidies of wool, if it was taken out of the realm, is greatly lessened, etc.]
Viz. the Subsidies granted in Anno 21 Edw. 3. The Alnagers fee of the subject granted by Parliament. Mag. Cart. ca. 30. Consuetudines. Stat. de Scaccario. 51 Hen. 3. Custum des Leynes. 11 Hen. 4. ca. 7.
[Ed.: [both words mean ‘customs’].]
[Ed.: In the Red Book of the Exchequer, in the keeping of the king’s remembrancer.]
Lib. rubeus in Scacc. fo. 265. Vid. 6 Edw. 3. fo. 5. & 6. the Archb. of Yorks case.
[Ed.: Concerning liberties granted to the wine merchants of the duchy of Aquitaine, paying to the king and his heirs two shillings for every tun of wine brought by the same within the realm of England or the king’s jurisdiction.]
Rot. Cartarum Anno 31 Edw. 1 nu. 44. called Carta mercatoria.
[Ed.: granted that for every tun of wine which they should bring or caused to be brought within the realm, etc. they would pay to us and our heirs two shillings in the name of custom, etc.]
Fleta li. 2. ca. 21. Rot. Pat. 40 Hen. 3. Rot. Pa. 28. E. 1. pro Math. de Columbar’.
[Ed.: certain prise.]
[Ed.: right prise.]
[Ed.: royal prise.]
[Ed.: by the merchant charter.]
P. Rec. 20 Ric. 2. Vid. Tr. 33. Edw. 1. Rot. 124. Prisae Vinorum in Hibernia.
[Ed.: Be it remembered that the king has by ancient custom from every merchant-ship laden with wine, landing within any port of England, for twenty tuns of wine, two tuns, and for ten tuns, one, to be paid for the royal prise as established since ancient times.]
43 Edw. 3. ca. 3. & 1 Hen. 8. ca. 5.
8 Edw. 2. nu. 17 Edw. 3. nu. 49 1 Ric. 2. nu. 82. 4 Ric. 2. nu. 36. 9 Ric. 2. nu. 44. 1 Hen. 4. nu. 121. 2 Hen. 4. nu. 83. 2 Hen. 4. nu. 70. 11 Hen. 4. nu. 47. 1 Hen. 5. 5. nu. 23. 7 Hen. 5. nu. 18. 1 Hen. 6 nu. 41. 7 Edw. 4. nu. 20. Acts of Parliament. 2 Edw. 3. cap. 2. 25 Edw. 3. ca 5. 4 Hen. 4. ca. 22. 1 Hen. 5. cap. 1. 15 Hen. 6. ca. 14. 1 Ric. 3. ca. 3. 21 Hen. 8. cap. 5. 23 Hen. 8. cap. 4. 26 Hen. 8. cap. 3. 31 Hen. 8. ca. 1. 32 Hen. 8. cap. 32. 2 Hen. 6. cap. 8. &c 13. 1 & 2 Ph. & Mar. cap. 13. Vide Infra, cap. 8. pa.
a 47 Edw. 3. nu. 12.
b 6 Ric. 2. nu. 13.
c 7 Ric. 2 stat. 1.
[Ed.: on this occasion.]
d 5 Ric. 2 nu. 40. 9 Ric. 2. nu. 11. 10 Ric. 2. nu. 18. 11 Ric. 2. nu. 12.
e 13 Ric. 2. nu. 20.
f 14 Ric. 2. nu. 12.
g 17 Ric. 2. nu. 12.
h 2 H. 4. nu. 9.
i 4 H. 4. nu. 28.
k 6 Hen. 4. nu. 9. 8 Hen. 4. nu. 9. 9 Hen. 4. nu. 27.
l 11 Hen. 4. nu. 45.
m 13 Hen. 4. nu. 10.
n 1 H. 5. nu. 17.
o 3 H. 5. nu. 50.
p 2 Hen. 6. nu. 14.
q 3 Hen. 6. nu. 17. 9 Hen. 6. nu. 14.
r 23 Hen. 6. nu. 16.
s 31 Hen. 6. nu. 8. & cap. 8.
t 4 Edw. 4. & 12 Edw. 4. ca. 3. in print.
u Rot. Par. 1. Hen. 7.
x Rot. Parl. 1 Hen. 8. not printed. Vid. 6 Hen. 8. ca. 14. in print.
1 Edw. 6. ca. 13. 1 Mar. cap. 18. 1 Eliz. cap. 19. 1 Jac. ca. 33.
*Rot. Par. 11 Hen. 4. nu 45. 13 Hen. 4. nu. 10.
Rot. Part. 4 Ric. 3. nu. 15. 5 Ric. 2. nu. 32.
Hollensh. Chron. 769.
Hollensh. Chron. 891.
Rot. Par. 9 Edw. 3. nu. 5.
9 Hen. 6. nu. 15. 10 Hen. 6. nu. 50.
[Ed.: A new path often fails the traveller, but not the old.]
Second part Inst. Mag. Carta cap. ultimo.
[Ed.: Fifteenth part of the movable goods.]
[Ed.: tenth part.]
[Ed.: according to the fifteenth part.]
Doomsday. Norff. in Wanelunt, i. Wayland, & ibid. in Frebringe in Massingham, &c.
*Rot. Par. 11 Ric. 2. nu. 11. This is contained in the Act of Subsidy, and so an Act of Parliament; and accordingly Subsidies, &c. have been granted, as in the book of statutes appeareth.
Rot. Par. 2. H. 5. nu. 20. 1 H. 6. nu. 46. 3 H. 7. 106, the Queen. 6 H. 8. to the Duke of Suff.
[Ed.: one by one.]
Pl. Com. 12 & mistaketh it, and that the Clerk number them.
a Rot. Parl. 37 Edw. 3. nu. 2. and the Writ to the Clergie, De orgando pro rege & regno, which was usuall in those dayes.
b Rot. Parl. 43 Edw. 3. nu. 1. 25. Edw. 3. nu. 15. 50 Edw. 3. nu. 2.
c Rot. Par. 4 Hen. 6. nu. 12. See the Act of that Parliament.
d Rot. Par. 3. Hen. 6. nu. 1. & 10.
e Rot. Parl. 27 H. 6. nu. 18.
f Rot. Par 2 Hen. 4. nu. 14. 5 Hen. 4. nu. 18, 20.
Rot. Parl. 21 Ric. 2. by the Count of Arundell to the D. of Lancast. 4 Hen. 6. nu. 12.
[Ed.: You would be insuperable if you were inseparable. This proverb, Divide and rule, has been rejected, since the root and the summit of authority are confirmed by the consent of the subjects.]
Rot. Parl. anno 11 Hen. 4. nu. 10. the King desired this unity. 20 Judicum.
[Ed.: As if one man, with one mind, and one counsel.]
1 Chron cap. 28.
[Ed.: prepared thoughts are always wiser and better than hurried.]
7 Hen. 6. 28. lib. 11. fo. 14. Inter leges Edwardi regis. ca. 8.
[Ed.: Among the laws of King Edward, chapter 8, concerning tithes to be rendered to the Church, in the section concerning bees, etc.: These things were preached by the Blessed Augustine, and were granted by the king, to the barons and people.]
a See 13 Eliz. cap. 1. 39 Hen. 6. 15 Vide infra. ca. 79.
b Fortesc. ca. 18.
[Ed.: If you consider its antiquity, it is the oldest, if its worthiness, it is the most honourable, if its jurisdiction, it is the most extensive.]
[Ed.: To this I set neither boundaries nor periods. (Virgil, Aeneid, i. 278.)]
d Rot. Par 12 Edw. 4. nu. 20, 21, 22. the case of the wives of the Duke of Clarence and Glocester.
e 12 Edw. 4. nu. 34. Duke of Buckingham.
f 21 Ric. 2. nu. 27. Sir Ro. Plesington. 31 Hen. 6. cap. 1.
g This is usuall in many Parliaments.
h Rot. Par. 5 & 6. Edw. 6 the Lo Marquisse of Winchesters case.
[Ed.: absolutely (i.e. without qualification).]
i Rot. Pat. Anno 10 Ric. 2. m. 6.
k Beaufort came to the House of Lanc. by mariage between Blanch of Arcois, and Edmond first Earle of Lancast.
l Rot. Pat. 20 Ric. 2. membr. 7.
m This John in Anno 21 Ric. 2. was created Earle of Somerset, and Marquisse Dorset. But in 1 Hen. 4. the Marquiship was taken away by Parliament.
n This Henry was after Bishop of Winchester, Cardinall of S. Ewseby, and Chancellor of England.
o This Thomas was in 21 Ric. 2. created Earle of Dorset.
p For Domicellus, &c. See Lamb. inter leges Edw. fo. 139. b. Nos indiscrete domicellos de pluribus dicimus, quia Baronum filios vocamus domicellos, Angli vero nullos, nisi natos regum.
q Joane was first married to Ralph the first Earle of Westmerland, and after to Robert Ferrers Lo. of Owseley.
[Ed.: The king, etc. to our beloved and noble kinsmen John, knight, Henry, clerk, Thomas, servant, and our beloved noblewoman Joan Beaufort, maid, being brothers and sisters born of our most beloved uncle, John, duke of Lancaster, and our lieges, greeting. We, being inclined to the prayers of our said uncle, your begetter, since you suffer from a defect of birth (as is asserted), so that notwithstanding such defect (which we will take of the same quality as if sufficiently expressed in the premises) you may be appointed, promoted, chosen, received and admitted to whatsoever dignities of honour (excepting the royal dignity), preeminences, estates, degrees, and offices both public and private, both perpetual and temporary, feudal and noble, by whatever names they are called, even if they are duchies, principalities, earldoms, baronies or other fees, and whether they are mediate or immediate or are held of us, and that you should be able to receive and retain them as freely and lawfully as if you had been born in lawful wedlock, notwithstanding in any way any statutes or customs whatsoever of our realm of England (which we take here as if fully expressed) have been published or observed to the contrary: by the fullness of our royal power, and with the assent of our parliament, by the tenor of the presents, we dispense, restore and legitimate you and each of you. In witness whereof [etc.] Witness the king at Westminster on the ninth day of February [etc.] By the king himself in parliament.]
Rot. Parl. Anno 1 Hen. 7. not in print. 7 Hen. 4. cap. 2. the like to Hen. 4. the right of the Crowne being then in the descent from Philip daughter and heir of Lionel Duke of Clarence. Vid. 1 Hen. 7. 12 13 25 Hen. 8. cap. 12. repeal by 28 Hen. 8. cap. 7. & 1 Mar. Parl. 1. cap. I. See 13 Eliz. ca. 1. in principio.
[Ed.: Not withstanding, a writ or clause in a document or order excusing the performance of a duty.]
[Ed.: excepting the royal dignity,]
*See Hovenden, pag. 608. for this word Domicel.
b Rot. Parl. 22 Hen. 8. The attainder of The Cromwell Earle of Essex.
[Ed.: Let oblivion sweep it away, if possible; if not, let it be covered in silence:]
[Ed.: Deeds contain many things which are prohibited to be done.]
a Lex Divina. John 7. v. 15. Deut. c. 17. v. 10. & ca. 19. v. 15. Mat. par. 18. Johannis 273. Incivile videtur et contra Canones in hominem absentem non vocatum, non convictum nec confessum ferre sententiam. Hereof see paulo postea.]
[Ed.: Does our law judge a man before it has first heard him and knows what he does?]
b Acta 25. 16. Gen. 3. 9. Dixit dominus, Adam ubi es. Vide Gen. 18. 21. Ecclesiasticus 11 7. 8.
c Praxis Sanctorum Josua 7. 19. 22, 23., etc.
[Ed.: Joshua said to Acab, My son, give glory to the Lord God of Israel, and confess to me what you have done, do not conceal it.]
d Jud. 20. 3.
[Ed.: The Levite who was the husband of the slain woman, when asked how so wicked a crime had been committed, etc.]
e Rot. Par. 2. Hen. 6. nu. 18.
Placita in Parliamento Domini Regis, Anno Edw. 1. 33. Northampt.
Placita coram domino rege, Pas. 33 Edw. 1. Rot. 19. Oxon.
[Ed.: The lord king commanded the sheriff to take with him four discreet and lawful knights of his county, and to go in person to Nicholas de Segrave, and in the presence of said knights to summon him, and firmly enjoin him on behalf of the king to appear before the lord king at his next parliament at Westminster upon the lord king’s arrival there, that he might hear there the will of the lord king himself concerning those charges that the king was intending to lay against him, and that he might do and receive besides what the court of the lord king decided regarding the same. And the sheriff now gave orders, and he took with him the four knights Thomas Wale, Walter the son of Robert de Daventry, Robert de Gray de Wollaston, and Ralph de Normanville, etc., and went in person to the manor of the aforesaid Nicholas at Stowe, and in the presence of these same knights summoned said Nicholas, and firmly enjoined him to appear before the lord king at the next parliament, according to the said form and tenor, etc.
Almaric de Sancto Amando, Master John de Sancto Amando, William de Monte Acuto, Richard Attehaw the constable of Oxford Castle, Richard de Hurle, the chaplain Thomas de Carleton, John de Ros, John de Trenbrigg, William Attewarde his brother, and Philip de Wigenton were attached by the sheriff in Oxford Castle, by order of the lord king, to answer to the same lord king at his Parliament on the morrow of St. Matthew the Apostle, in the 33rd year of his reign, concerning certain crimes and trespasses specified below. Then through sufficient mainprise they were given a day to appear before the lord king himself, namely the 15th day following Easter.]
[Ed.: concerning injuries, burdens, or hardships.]
Placita coram rege apud Cantuar’ de termino Pasc. anno regni regis E. 1. 30. Consimile breve ubi supra eidem Roberto de Burghersh ad sectam majoris et baronum quinque portuum.
[Ed.: The lord king sent his writ to Robert de Burghersh in the following words: “Edward by the grace of God, etc., to his beloved and faithful Robert de Burghersh, constable of his castle at Dover and his warden of the Cinque Ports, greetings. Because our dearly beloved in Christ the Abbot de Faversham, and his bailiff Robert de Gurne of the same vill, before our council at York have made grave complaints concerning various wrongs, burdens and hardships which you, voluntarily and without reasonable cause, have inflicted on them, and because they earnestly ask that we provide them with suitable relief in this matter, we accordingly have set a date for themtoappear beforeus and our council,15 days after Easter. . .that they might present their aforementioned complaints, and do and receive besides whatever justice recommends. We command you to appear before us and our council on said day, to respond to said abbot and his bailiffs on these matters, and to do and receive what our court decides in this case, and in the meantime you shall completely desist from inflicting unjustified injuries, burdens, hardships and distress on said abbot and his bailiffs. And you shall present there this writ. Witness: myself. At Lincoln(?), on January 30 in the 30th year of our reign.” On the strength of this writ said Robert came and presented the writ on the day specified in it. And said abbot came and produced his complaints written on a certain roll, and he presented these complaints in his suit and had them read here in court, the first of which was as follows, etc.]
25 Hen. 8. ca. 12. Eliz. Barton, and others. And see the Act of the Attainder of the Lord Cromwell, Anno 32 Hen. 8. ubi supra.
A mischievous Act with a flattering Preamble in 11 Hen. 7.
11 Hen. 7. ca. 3.
a Upon information with out any indictment.
b By their discretion, and not secundum legem & Consuetudinem Angl. as all proceedings ought to be.
c Obsolete statutes and all, and specially such as time had so altered from the originall cause of the making thereof, as either they could not at all, or very hardly be observed and kept.
But it extended to a Premunire, misprision of treason, &c.
1 Hen. 8 ca. 6.
See the 2. part of the Institutes, W. 1. ca 26. See the Preface to the 4. part of the Report.
In the Chapter of the Court of Wards and Liveries.
[Ed.: Let those who follow in their footsteps be affrighted by their end.]
Lib. 5. fo. 100. Rooks case. Lib. 10. fo. 128. &c.
[Ed.: Discretion is to know through law what is just.]
[Ed.: And concerning the entire matter, etc., they seek the discretion of the judges,]
Pl. Com. 348. Barnards case.
[Ed.: the advisement and discretion of the judges in said matters, etc.]
1 Hen. 4. nu. 144. 21 Ric. 2. nu. 20. repealed by 1 Hen. 4. ca. 3. 1 Hen. 4. nu 48. Vid. 7 Hen. 4. nu. 37.
21 Ric. 2. ca. 16. 21 Ric. 2. nu. 44.
1 Hen. 4. nu. 70.
2 Hen. 4. ca. 22. Vide 21 R. 2. nu. 44.
26 Hen. 8. ca. i.
26 Hen. 8. ca. 1.
26 Hen. 8. ca. 13.
a By word, &c. this by construction referres to the 2. clause.
b Shadowed with the Queen or Prince.
c Deprive, an obsecure word.
d Note this word [title] in the former Act.
e Parker B. of Cant. Lib. de Antiquitate Brit. Ecclesiae. Clerus animo toto obstupuit, nondum enim quid sibi hic novus vellet titulus, aut quorsum tenderit, prospexit, &c.
f But this Act lived not long, for twice it was repealed viz. by 1 Edw. 6. c. 12. & 1 Mar. c. 1.
h Isidor. 2 Etymol.
[Ed.: Moreover, the law shall be honest, just, able to be complied with, in accordance with nature and custom, suited to the time and country, necessary and useful, also clear, lest through obscurity it deceive the unwary, and it shall be written not for private advantage, but for the general benefit of the citizens. These things must be considered when the law is being formulated, because once laws have been passed one will not have the freedom to judge them, but rather will be obliged to base his judgements on them.]
5 Eliz. ca. 1.
Exod. 4. 16. Tu, i. Moses eris ei, i. Aaron, in hiis quae ad deum pertinent, &c. Exod 32. 15, 16. Moses custos utriusque tabulae. Numb. 10. 1, 2. Moses custos utriusque tabulae. Joshua 24. 1. Congregavit Josua, &c. 28. dimisit. 1 Chron. 15. 4. 1 Chron. 16. 43. Rex David. 2 Chron. 5. 2. Rex Solomon. 2 Chron. 29. 15. &c. Ezekias. Nota. 1 Sam. 15. 17. Et ait Samuel ad Saul, nonne cum parvulus esses caput in tribubus factus es? and the tribe of Levi was one. 1 Maccab. 14. 44. See hereafter ca. 74.
43 Edw. 3. ca. 1. 11 Hen. 7. ca. 1. 28 Hen. 8. ca. 17. 1 Edw. 6. ca. 11. Lib. 4. fo. 46. the B. of Cant. case.
[Ed.: Later laws abrogate prior laws that are contrary to them.]
Int. Placita Parl. 18 Edw. 1. rot. 18. Ibid. 20 Edw. 1. Magnum Placitum int. Com. Gloc’ & Com. Heref. & Essex irr. Rot. Claus. An. 28 Edw. 1. in Dors. irr. le Magna Carta. Pasch. 33 Edw. 1. rot. par. Nich. Segraves case. Rot. 22. Tr. 12 Edw. 2. Ro. 60. de irr Petition in Parliament, al banke le Roy.
[Ed.: To be informed of. A writ of common law origin issued by a superior to an inferior court requiring the better to produce a certified record of a particular case tried therein.]
[Ed.: Writ enclosing a record sent to be tried in a court palatine; it derives its name from the Latin word mittimus, “we send.”].
[Ed.: From the close roll of the 28th year of the reign of Edward I, membrane 2, in the dorse. The king to his treasurer and barons of the Exchequer, greetings. It is our desire that the Magna Carta of the liberties of England of our father Lord Henry once King of England, which we have confirmed andreissued, be strictly and inviolably observed in each and all of its articles. Accordingly, we command that you see to it that to the best of your ability said charter be strictly observed and obeyed before you in said Exchequer in each and all of its articles. Witness: the king. At Dumfries, October 23.
The king to his justices of the bench, greetings. In order to relieve the burdens which the people of our realm have heretofore suffered on the occasion of war, and to improve the condition of these same people, that they might thereby in the future prove readier to serve us, and more willingly lend us aid in our enterprises, we have decided that by our special grace said people should be granted certain articles, which will (God willing) be of great profit to them. We therefore command you to see to it that the aforementioned articles which we are sending to you under our seal be strictly observed before you in said bench, to the best of your ability, according to the force, form and intent of the same. Witness: the king. At Dumfries, October 30.]
5 Ric. 2. Stat. 2. c. 4 Rot. par. 31 Hen. 6. nu. 46. fines were set, &c. If any of the Lords or Commons come not, &c. they shall be fined.
Vi. 3. Edw. 3. 13. sup. If any of the Lords of Commons depart. &c. they shall be fined 1 & 2 Ph. & M. Rot. 48. ut sup.
*5 Ric. 2. stat. 2. ca. 4.
See before pa. 14 Rot. par. 13 Edw. 3.
27 Hen. 8. demonsteries, & 31 Hen. 8 cap. 13. 33 Hen. 8. cap. 14.
27. Hen. 8. cap. 28.
[Ed.: for the purpose of persuading the people.]
32 Hen. 8. ca. 23. 50. 34 Hen. 8. cap. 16. & 27. 37 Hen. 8. cap. 24.
Rot. Claus. in dors. 10 Hen. 7. 20 Septemb. Writs to divers ad ordinem militiqe de Balneosuscipiend. juxta antiquam consuetudinem in creatione usitatam.
[Ed.: in that common council.]
*Of regular Prelats that hold per Baroniam.
[Ed.: by baronage (by a heritable barony).]
[Ed.: in regard to secular things. . . . dead in law.]
And so was it adjudged in the Parliament at York, An. 12. Edw. 2 in the case of the Abbot of S. James extra Northamp. Stanf. pl. cor. 153. a.
[Ed.: in the truth of the thing; in actual truth.]
[Ed.: a Rot. pat. An. 26 Edw. 3. part. 1. no. 22 See Rot. claus. in dors. 11 Edw. 3. part 2. m. 11. Religious que teignont per Barony sent tenus de venier an Parliament Vid. ibid. 13 Edw. 3. part 2. m. 28 & 1.
[Ed.: That said abbot and his successors shall be forever free and exempt fromcomingtoparliaments and councils, both our own and those of our heirs.]
b Rot. pat. 11 Ric. 2. part 1. m. 2. Artic. 34.
[Ed.: Concerning the law and custom of England to the Archdeaconate of Canterbury, etc. It is the duty of all abbots, priors, and other prelates who hold of the king by barony, to attend in person all royal parliaments as peers of the realm, and, with the rest of the peers of said realm and others who have the right of attendance there, to consult, deliberate, ordain, rule and decide on matters of state and the other matters customarily treated there, and to perform there at the time of parliament all the other tasks required.]
Modus tenendi Parl. ca. 2. This is infra explained by the Assise of Clarendon.
[Ed.: There should be summoned and come to parliament by reason of their tenure all and singular archbishops, bishops, abbots, priors, and other major clergy who hold by barony or county, and no minor clergy, unless their presence be thought useful or necessary, etc.]
[Ed.: That whoever of these serves for a time there as abbot, is and shall be one of the spiritual and religious lords of parliament, both our own and those of our heirs and successors, and he shall enjoy the honor, privilege and liberties of the same.]
10 Hen. 2. cap. 11. Mat. par. 97. Assisa de Clarendon.
Rot. Parl. 11 & 21 Ric. 2.
[Ed.: As part of the customs and liberties of the king’s predecessors, namely Henry I and others, which should be observed in the kingdom and binding on all, the archbishops, bishops and all persons of the realm who hold from the king in chief should hold their possessions from the king by baronial tenure, and accordingly should answer to the justices and ministers of the king, and observe and perform all royal customs, and like other barons are obliged to attend the trials of the Royal Court, unless it is a case involving death or loss of limb.]
Cart. libertat. a Rege Johanne Anno 17 regni sui concess. Mat. Par. 343.
[Ed.: That we shall cause to be summoned individually by our writs the archbishops, bishops, abbots, earls, and greater barons of the realm.]
Hereof see the second part of the Instit. cap.de Militibus. 1 Edw. 2. Inter leges Edw. cap. 21. Ib. ca. 9.
*1. Curiam Baronis. Glanv. li. 8. cap. 11. acc Bract. li. 3. 154. b. Camd. Brit. 121.
[Ed.: The barons who have their own court of their own men should see that they deal with them in such a way as to do no offense to God nor offend the king.]
[Ed.: Baro is derived bar, and in the German tongue means a man who is free and under his own authority.]
Indors. claus. An. 46 Edw. 3. nu. 4. Rot. claus. 7 Ric. 2. nu. 1. de expensis milit. Regist. fo. 192. 2. acc Diota. Veniendo, Morando, Redeundo, per diem 4 s. Par. 51 Edw. 3. nu. 45 35 Hen. 8. cap. 1. See the ancient Treatise, De modo tenendi Parl.
[Ed.: (let us take one) in the following words: John Shordich, one of the knights of the county of Middlesex who came to the parliament held at Westminster on the morrow of All Souls last, has a 21-day allowance of 4 pounds 4 shillings, to cover his expenses in coming to parliament and staying here and then returning home, receiving 4 shillings per day. Witness: the king. At Westminster, on November 24, in the 46th year of his reign.]
[Ed.: two shillings per day, as above, making the necessary changes.]
a Regist. f. 192. 2 See the stat. of 12 R. 2. ca. 12 & see 23 H. 6. ca. 11. how the Sheriffe shall levie the same. See 8 R. 2. tit. Avowrie 260. what the Common law was.
b Nota, de communitate. Vid. sup. pa. 1. For the legall understanding of this word Commons.
[Ed.: from the community of said county both within liberties and without (excepting only the cities and boroughs which have sent citizens and burgesses to our parliament).]
c Rot. Par. 1 R. 2 nu. 11.
d Regist. 261 7 H. 6. 35 b. F. N. B. 14 E.
[Ed.: On not levying a knight’s expenses from men of the ancient demesne, nor from naifs.]
e Regist. 191, 192. 12 R. ca. 12.
f 34 H. 8. ca. 24. 9 H. 6. nu. 46.
[Ed.: A similar one for the Isle of Ely, etc. (the opening words of the statute cited).]
g Rot. Par. 1 H. 5nu. 26.
[Ed.: on the morrow of the Purification.]
h Nota, for presidents.
i Regist. 261. F. N. B. 229. 2.
k Vid. sup. pa. 4,5.
*Parl. An. 4 Edw. 3. apud Winton. whereof there is no Roll now retaining.
See the stat. of 5 R. 2 cap. 4. Vid. sup. pa 4. 5. Rot. brev. 7 R. 2. Dors. claus. 7 R. 2 m. 10. & 37.
Vi. stat. der Mar. cap.
[Ed.: as if a liege, or a quasi-liege.]
[Ed.: a true liege.]
39 Edw. 3. 35,36.
[Ed.: as Peer of the Realm]
Hil. 18 Edw. 1. fo. 4. nu. 105.
*Rot. Par. 31 Hen. 6 nu. 26, 27, 28. Note, he could not be speaker unlesse he were Knight of the shire &c. in the book of Burgesses of the House of Commons.
a Alexan. Nowels case, who after was Deane of Pauls being a Prebend. 1 Mar.
[Ed.: Select two of the more suitable and discreet knights armed with swords.]
[Ed.: two, etc., of the more suitable and discreet.]
Rot. Par. 46 Edw. 3. nu. 10.
5 R. 2. stat. 2. ca. 4. 7 Hen. 4. ca. 15.
[Ed.: Lack-learning Parliament.]
Rot. Claus. Anno 6 Hen. 4. See before pa. 10. 4 Petty Acts passed at this Parliament of little or no effect, as by the same appears. Rot. Parl 50 Edw. 3. nu. 83. an Ordinance that no Sheriffe should be Justice of peace, &c. bound not the subject untill a statute made 1 Mar. c. 8.
5 Eliz. cap. 1.
Rot. Parl. 5 Hen. 4. nu. 38.
Pasch. 3 E. 3. fo. 19 tit. coron. F. 161.
29 Hen. 6. cap. 3.
Rot. pat. 1 part. 11 Edw. 3. Rot. pat. 4 part. 1 Edw. 4. m. 15. pro Do. Beauchamp. Rot. pat. 2 Edw. 4. part 2. m. 2. pro Dom. Vesey.
[Ed.: a diseased imagination.]
39 Edw. 3. 15. 34 Hen. 6. 25. 35 Hen. 6. 42.
5 Ric. 2. c. 4. stat. 2.
[Ed.: according to the law and custom of parliament.]
[Ed.: for the public good; for the welfare of the whole.]
See before pag. 24, 25.
16 Ric. 2. Rot. Claus. in dors. Rot. Parl. 11 Ric. 2. nu. 7. 1 Hen. 5. nu. 9. cap. 1.
[Ed.: The court of Parliament is governed by its own laws.]
a Rot. Parl. 5 Hen. 4 nu. 12. 23 Hen. 6. nu 45. 27 Hen. 6. nu 18. 31 Hen. 6. nu. 26, 27 Lamb. Inter leges Edw. Confessoris, ca. 3. Ad synodos, ad capitula venientibus, sive summoniti sunt, sive per se quid agendum habuerint, sit summa pax.
[Ed.: Through the manifold activities [of life] experience created law. You will learn many things much more easily from experience than from rules.]
Rot. Parl. 45 H. 3. nu. 32.
Patricius, lib. 5. De institutione reipublicae.
[Ed.: We ought to regard the commonwealth as a ship, which requires the labors and services of everyone.]
[Ed.: In most cases it is not the disease that kills the body, but the failure to treat the disease.]
See the Princes case lib. 8. fo. 1
[Ed.: in the first year upon regaining his throne.]
a Where the printed book suppose that there was another Parliament in Anno 15 Edw. 3. whereby the former statute was repeated, the truth is, the Parliament was holden at Westm. 15 Pasc. Anno 17 Edw. 3.
c Rot. Parl. 10 Hen. 6. nu. 14.
[Ed.: Mode of holding parliaments.]
[Ed.: Neither weak wisdom nor abuse of power—public matters are (to) benefit.]
It was Forbidden.
Command and injunction
Without a day, according to the demise of the King.